good morning ladies and gentlemen our first case for argument this morning is friedman against highland park good morning james votes on behalf of the plaintiffs were here this morning on appeal from the district court's order granting summary judgment in favor of highland park and finding that the highland park assault weapons or ins is constitutional under the second amendment the supreme court made it clear in heller and again in that donald that law abiding persons have a core constitutional right to keep commonly possessed firearms in their homes to defend themselves and their families that core constitutional right when it's exercised by law abiding persons cannot be did minish by the government any law that does so any law that tells law abiding persons how they may defend their homes what type of commonly own firearms they may possess for that purpose is categorically unconstitutional under the second amendment so if somebody decides to possess a bazooka for personal protection the second amendment disables person from disables the state from regulating it you can see where this is going the next question will be in you know and hold him forty one tank well i'll answer your first question and then your second question i think that possession of a bazooka in the home is already  weren't invented until relatively recently well it's a longstanding prohibition on the civilian ownership of bazookas i'm sure dating back to the moment they were invented there was a long standing pro about prohibition on their ownership much like short barrel prohibition on ownership of those firearms dates back to back to the one nine hundred thirty s you know nearly eighty years ago yes and the second amendment dates back to the eighteenth century why would a prohibition adopted in the ownership and possession of firearms it leaves a lot of question yes that's what that's part of the problem heller says will sustain reasonable prohibitions and not on reasonable ones leaving us with the question what's reasonable but i don't see how you can say well fully automatic fully automatic so different from some of the automatics because they were prohibited in some states say in the one nine hundred fifty s when the one nine hundred fifty s or one hundred fifty years after the constitutional amendment and i don't see how we could have a distinction saying statutes adopted one hundred fifty years after the second amendment are ok but statutes adopted two hundred years after the second amendment are forbidden that doesn't sound like a rational distinction doesn't well it may not be a rational distinction your honor but we're here today to discuss a ban on semiautomatic firearms yes not fully automatic fire but the structure of your argument is one under which fully automatic firearms are as protected by the second amendment as some i automatic farms i don't believe that's the case your honor because i don't believe that the case could be made that fully automatic firearms are commonly possessed by law abiding persons the of the matter is the firearms at issue in this case are without question commonly owned by law abiding purposes the evidence in the record is is clear that these firearms are among the most popular rifles owned by american citizens today in one thousand ninety four the united states supreme court staples recognized a ar fifteen rifles as traditionally accepted as lawful possessions a generation later one out of every nine firearms manufactured and sold in this country was an a r type rifle just one of the many types of rifles banned by highland park under this ordinance i want to get back to the automatic machine guns that my brother mentioned you agree that a city do you agree that a city can ban on a mac machine guns without violating the second amendment i do agree that they could in fact it would be entirely consistent with federal law subject sions under federal law that does permits some civilians under restrictions to possess those final what if the machine guns became popular and lawful in some places would banning them then become unconstitutional because their use had become common i think that under the decisional framework of hell are they at law or possession of those firearms would be viewed as one of those longstanding prohibitions prohibiting firearms that are not commonly on and possess that are dangerous and under usual well the weapons that are at issue here are not quintessential self defense weapons and you didn't point the district court to any instances of an assault weapons use in self defense did you know there was no anecdotal evidence in this record to that that well doesn't that matter when your argument is that you need these weapons for self defense i don't believe it does your honor i don't believe that anecdotal evidence of somebody using one of these firearms for self defense purposes or anecdotal evidence of a criminal using one of these firearms for unlawful purposes is the kind of evidence that you drive constitution policy you know it certainly might have made the record more interesting it would have been something to talk about but the simple fact of the matter is there is substantial evidence in this record substantiating the use of these firearms for self defense purposes let me get more specific on there are any known instances where a person needed to five ten or more rounds in self defense certainly there are your honor and you know there's not that anecdotal evidence but there is data in the record  indicating that as many as one out of every eight new york police shootings involve firing more than ten rounds of ammunition and keep it might those are police officers who are arguably more trained than many civilians are trained and they have the obligation of the need to fire more than ten rounds but i think more importantly you may or may not need to fire any ammunition in a self defense account or merely brandishing a gun might be enough to end the threat so is it your position that people that carry around a k forty seven s and other assault weapons in published around downtown highland park or chicago indianapolis when they say they need to for self defense you know what we're discussing here possession of these types of firearms in the home to protect yourself and your family we're not talking about carrying these firearms outside of the home in public places that what we're arguing is that the city of highland park does not have the right under heller to tell law abiding citizens like dr friedman that he cannot possess this type of firearm in his home for self defense purposes play and hand guns as long as other types of guns are available i e long guns well let me take that a little further the ban might remove a class of weapons at the plaintiff would like to use but is there any evidence that a second amendment right would really be effective in other words you haven't pointed to any studies that assault weapons are somehow better than hand guns for self defense why your honor i think i think we have we have cited two substantial evidence in the record from experts and others that these types of guns are believed by many to be the most suitable type of firearm for self defense encounters they are the firearms that have been adopted by governmental agencies expressly for that purpose they are accurate they are reliable they are easy to use they have minimal recoil compared to other firearms these are essentially the modern technological solution of firearms they have many many attributes that make them suitable for self defense purposes including the fact that they are arguably the safest kind of self defense gun to use in the home and that's because most of these firearms are typically chambered for two to three which is a relatively light weight round of ammunition that has sufficient stopping power to end of that threat and that is ultimately the goal in any frightening self defense encounter but because they're like weight when they hit an interior wall they lose momentum more rapidly than large caliber rounds do and they pose less of a three that to an innocent family member on the other side of that wall that large caliber ammunition or are heavy buck position to be able to carry these larger things around with them that's mostly what you can keep in the home that's correct and it and i assume it's a doctor for freedmen once a in his home what is the fact it's in the record well the the the record evidence regarding dr friedman's possession of this firearm is that he keeps it in his home for self defense purposes that's the extent of the record defending against the common use i'm not saying that he's in highland park i guess maybe the bad guys not go there some but whenever is that defense more effective against a pistol which is more commonly used in murder well you know every circumstance is obviously different but you know in any gun can be affectively used in any circumstance these guns these these some automatic rifles that highland park has chosen to ban  accurate they are reliable they have less recoil than many other guns so in any hypothetical self defense counter a person would be well equipped to defend himself with one of these guns and so are you saying that they are appropriate for use in confined spaces like a hallway or a bedroom absolutely in fact you know that they're they're put in the hands of homeland security agents as personal defense weapons for that very purpose for use in close quarters burglaries in the last five years where a resident was present is that right well that is the record evidence however that the a right guaranteed under the second amendment in fact all of the rights guaranteed under the bill of rights are national rights there's no there's no geographic by geographic you know restriction or limitation on the bill of rights guarantees and justice alito recognized that fact in the donald case in which he sed he stated that the bill of rights or guarantees from the national perspective they limit local government's ability to devise solutions to social problems that suit the needs and values of those local communities so  you know the idea that one community can limit somebodies constitutional rights that he may have another committee just community just isn't i don't think good constitutional policy but  coming back to your point judge williams on whether there's any evidence that any of these guns have ever been actually used in a self defense account or i think it's important to recognize that you know fundamental constitutional rights exist even if they're not exercised and here we're talking about the right to keep a commonly own firearm in your home that right exists whether it's never taken out of a safe a closet a bedside drawer  and heller says that governments cannot tell law abiding people what kind of guns they can own in their home provided that gun is commonly owned by law abiding people for lawful purposes that's commonly known mean it's not dangerous and unusual i don't believe so your honor because if in heller the test it is the court established is are these firearms commonly owned for lawful purposes and they only relied or cited to the dangerous in any usual phrase as support for that common use standard a gun cannot be common and unusual at the same time there  there are two separate standards that we have to meet here in the standard that the court ultimately came down to was common use at the time and i see i'm in my rebuttal time and i would like to sit down and lead podium to my opponent certainly highland park and affirming the assault weapons ban for two reasons one that the ordinance at issue does not implicate the second amendment under heller second even hope that surely as ridiculous it implicates the second amendment you you must mean it's valid to the second that this is a firearm this is a suit about firearms it has nothing to do with anything except the second amendment if i could read it it takes me a minute to explain why i take the position that first is to start where mr both left off with heller which says that in heller like most rights the right secured by the second amendment is not unlimited from blackstone through the one nine hundred centuries cases commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose that's straight from heller if this does well heller held that the second amendment established the right to a handgun for self defense in the home it did not expand beyond that right to all west that's the problem heller and mcdonald are two instances and now we need to figure out what else if anything the second amendment covers that's a far cry from saying it doesn't implicate the second amendment so let's go to what the supreme court said supreme court said that commonly homed weapons are proper and the claim in this case as i understand it is that this category of semiautomatic weapons is commonly known and therefore within the scope of the supreme court's rule in heller and i don't know what's wrong with that well that's certainly the contention of the plaintiffs all right so are you denying that that is the rule  denying that this category of weapons is commonly we don't know if there is a record the lower court below determined that he couldn't determine that this was commonly owned and moved on to the second prong as well see if if the district were to know whether these weapons are commonly under not then you can't grant summary judgment unless in your view that's not the legal standard at all correct the legal standard is first let's look at these weapons and determine one are they commonly owned or unusual well i think the supreme court took that phrase from blackstone and judge posner of this court has referred to it and in blackstone in his commentaries he referred to weapons that were dangerous and unusual as those that were used to terrorize the populace it has that it's a term of art for weapons like the bazookas you referenced that would not be accepted by a civilized society and sit in the city of highland park is the term that assault weapons given that there are ridiculous in mass shootings and the fact that they are used more often than other weapons on a proportionate basis for the assassination of law enforcement officers that those just aren't the kinds of weapons that they want in the city of highland park there too they're too dangerous too so what if your  for self weapon for self defense where a lot of the scale the the denominator is so large and the number is so small that they are not in common use we don't know we know that a number of these guns have been manufactured but we don't know how many have been sold the weapons manufacturers do not really sales data but we don't know whether two three million is common given one hundred fifty million guns or not and that the district court said i can't make that decision i can't reach determination there by moving to the second prong of the analysis which is that intermediate scrutiny but i would submit that it's reasonable for this court to determine assault weapons and large capacity magazines are not the type of weapons that are  you're looking for a jury adam what's his name and then he hooked you know took his mother's illegal gun and went into a school and it seems that all of these horrific things are not so much based on and that's the best protection for him in his home is it is it matter who is the there is that too subjective no it does better who is the bearer but it also matters what the weapon is your honor and the problem these weapons assault weapons with large capacity magazines are used by the wrong people the the carnage that result is just horrific loomis in chicago almost all of the murders based  because it looks like it but it in your honor that there is an absolute second amendment right to a handgun and this court has extended the right to that handgun to also carry that handgun outside of the home to bear the arm to this where there are a lot of long rifles and shotguns and everything else that are much bigger than the handgun they're also code that what that by heller that may be extended by other kind of case law but that the question that you posed is is exactly the right one which is that that could not happen under this ordinance because no one in highland park would legally own that handbag or assault weapon and therefore no one could steal it from the his mother's home and take it to a school and shoot somebody of course it is good to have it in highland park when someone comes from the neighboring community where they're not banned in comes in with one but what is what is really happened in these other cases had a group but but but highland park is limited to controlling the government what it can and it looked at sandy hook and said we want to make sure that no one can do that in highland park and so the question of handguns versus assault weapons there is a significant difference in what can happen in tucson arizona there was a large capacity magazine and a semiautomatic handgun the shooter was able to get off thirty one shots before they could tackle him that's that's what this is designed to to work which is the multiple injuries since two thousand and seven there been fifteen incidents where eight or more people were killed or wounded using assault no they could not do that the what they're limited to is the assault weapons ban and the large capacity magazines but handguns certainly under heller are protected you know you argue that because a person can use other firearms considered the handgun to be the quintessential self defense weapon there are many reasons that a citizen may prefer a handgun for home defense it is easier to store in a location that is readily accessible in an emergency they cannot easily be redirected or wrestle the way by an attacker it is easier to use for those without the upper body strength to lift an a long gun that can be pointed at a burglar with one hand while the other hand dials the police whatever the reason handguns are the most popular weapon chosen by americans for self defense in the home and the complete prohibition of their use is invalid so everything in heller looked from the handgun to everything else and said the handgun is simply too historic too popular too reasonable as a the reverse is the case which is heller as judge easterbrook pointed out left that open and forced the courts to determine where do we draw that line and the first place you would look is are they commonly own just easterbrook i accept your response to that which is that you view these as commonly on the district court could not reach a determination then that is the beginning of the analysis not the end then we move to the second prong which a is there a close fit between the ordinance and the public interest that it's attempting to address and here i was a bit highland park met that close that close fit that the district court certainly found of park and so they found that the public interest was in eliminating this narrow band of weapons in order to eliminate the horrific mass shooting events your honor that have occurred in sandy hook in tucson in santa monica in a rural colorado in a work colorado someone armed with a drum of one hundred bullets entered a movie theater and killed twelve people and injured fifty eight more in a matter of minutes that is what the in highland park they attempted to address that by limiting the capacity of a magazine to ten bullets and so that in tucson if there were to happen at the revenue festival or happen at the highland park high school after tens orrible shots they could tackle the person as they did someone did and these guns have all evolved you know obviously we don't go back to day one but these guns have evolved into they're more efficient they're safer they're more accurate they have different nomenclature that enables lesser people people that have been trained in combat another thing you know vietnam i carried a gun and i never had to use it and i was and it was obsolete in in fourteen everybody else in sixty eight i wasn't  bad i just tool around with it but i know the difference and it seems if somebody has to i have a weapon and they're comfortable with it in their home in think this is the best way to do fission if someone comes in with that kind from outside of highland park with the kind of weapon you're against maybe the best defense is one like that but but but your honor i think that proves too much in that if someone said the best weapon for my home would be an m sixteen i know well for two reasons if they're not commonly owned they're dangerous and unusual but that that's an entirely circular the reason they're not commonly owned use of their illegal under federal law all machine guns are illegal under federal law i don't see how you can use the effects of a law to make to override the second amendment it would be like saying handguns in the home in the district of columbia were not common and the reason they were common is that they were illegal  would have been sustained because handguns were not common in the district of columbia having been made illegal oh although the they've noted that the the proper scope for determining common use is not locality by columbia but they were common nationally assault weapons or not at that time and there been great sales according to manufacture recently since the lifting of the federal ban and frankly since the election of president obama but other than that they are not the kind of weapon that have been used across the country like handguns or even like rifles or shotguns they are a very very narrow sliver of weapons that for whatever reason and judgment in this gets back to you to your question for whatever is saying he was insane we don't know what adam's problem was because he's dead and this is this is the frustration thing this in looking at it is that someone who has a legal gun everywhere else and can purchase it over the counter in that any understands the gun and shoes that is his protection apparently he doesn't do stuff outside the home that's what's in the record he's not a target shooter he's not a deer hunter he has it for that purpose if i could address your concern this way though the city of highland park presented former agents of the bureau of alcohol tobacco and firearms who is who presented someone who's not experienced the idea and to judge williams point earlier these have never been used in any event of self defense that anyone can identify mr posts refer to that is anecdotal we don't even have an anecdotal evidence we don't have an anecdote these have not been used for self defense in highland park or anywhere in the country that anyone can identify they are not the handgun they are not the rifle the people or the shotgun that people have traditionally used in their homes for self defense it may be that some people would like to isn't i'm sorry what's dangerous about being in someone else's home when you don't it's to they are not in spin your own home these are not typically used or properly used for self defense other weapons are but the dozens and hundreds of other weapons that are available are much better for self defense and that's the that's the other thing we present is a lot this is what he has in his home it's not this is where distinguishes he's not well going it around and showing it off and whatever maybe some people do and some states i don't hell or you have the right to carry that outside the home that's more versus madigan so if you say you have a right to assault weapon in your home there's nothing under the precedence of this court limiting it to the home then you can take that to target you can take that to the past the restaurant  driving around with yeah we would and unfortunately people are doing that but they the city of highland park is not permitting that and the characteristics of these weapons are critical i think to highland park when you look at  reasons for banning the various features isn't that right so for example these thumb hold stocks they allow a shooter to spray fire from egypt edition whereas normally a sport shooter would use the shoulder for precision ye concerning to me is the barrel shroud which the barrel for the purpose of that is to allow you to hold the barrel and fire multiple shots without burning your hand you don't need that for self defense the shooter in aurora would have burned his hand if  had to hold a weapon without a barrel shroud and fire that many times and then he can stabilize the barrel with his free hand when he's not being burned correct i see that the light is on and assault weapon ban such as home and parks currently five prohibited characteristics of these semiautomatic rifles that highland park expand highland parks own expert has conceded in this case that the presence of one of these speeches on one of these rifles let's not make the rifle any more dangerous or less dangerous and the reality is that these features on these rifles make the gun more accurate make the gun more safe to use by law abiding purposes for purposes and it's it's quite frankly backward thinking to believe that the design characteristics of a firearm that make it safer more accurate more reliable can be turned around and serve as a basis to deny law abiding citizens to possess those guns in their home i mean this is the technological evolution of firearms and i know  difficult decision for lower courts to deal with there's a lot of unanswered questions but i do think that one thing is clearly emerged from this court's application of heller and that is that when the light rights of law abiding persons to protect themselves in their home is affected by a law that right is entirely entitled to full solicit it's not a right to be taken lightly that's what this court has done with heller in its prior second amendment cases and i'd like to briefly address sandy hook because it's clear from the record that the high and park city council in principal part passed this ordinance in reaction to the horrible events at sandy hook but you need to look at sandy hook a little more closely than just that he went into that gun school with a rifle he also went into that school with two fully loaded large caliber handguns eleven fully loaded spare magazines for those handguns and one hundred ninety one rounds of large caliber handgun ammunition if he did not have that rifle with him that day unfortunately he would have been very able to inflict the same number of casualties as he did with the rifle so i think highland park is france confusing you know whether they are pending on appeal yes in fact the connecticut assault weapons ban in the new york state assault weapons ban is in the second circuit it was argued mid december and it's being considered by the second circuit as we speak  in those district court opinions and connected new york however those courts applied a level or a type of intermediate scrutiny that this court has not ventured toward in its second amendment cases a type of scrutiny to be blunt we have absolutely no idea what scrutiny means here because the justices have said they're they're not announcing anything they're reserving their right to figure this out in the future that makes life very difficult or it's a quagmire you have any speculation about why the justices have declined all opportunities to hear post mcdonald cases i don't know that they've had an opportunity to take any quite frankly they have had quite a  thank you thank you very much the case is taking under advis