Does the Second Amendment forbid bans of assault weapons and high-capacity magazines?
Not now. Until at least the next Court term next year, pro-gun-rights advocates will be sulking.
The case was Friedman v City of Highland Park. Lower Federal courts upheld Highland Park’s bans. Friedman and the Illinois Rifle Association appealed, eager to have the issue finally resolved after five-plus years since SCOTUS applied the Second Amendment to states and localities (in McDonald v. City of Chicago, 2010).
The two sides framed the issues before the Court very differently.
Highland Park said:
Whether the Second Amendment to the United States Constitution prohibits a municipality from banning a narrow category of unusually dangerous weapons that have been used in a series of deadly mass shooting events?
Friedman and the Illinois Rifle Association said the issues were:
Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes ...
(1) ... with a class of constitutionally protected “Arms” that includes the most popular rifles in the Nation.
(2) ... with ammunition magazines that number in the tens of millions and make up nearly half of the Nation’s total stock of privately owned ammunition magazines for handguns and rifles.
Writing also for Justice Scalia, J. Clarence Thomas wanted the case badly. He concluded:
I would grant [take the appeal] to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.
For more, here’s the backstory, recounting the astonishing arguments made by the Gun Guys.
So, is SCOTUS done with these issues? What happens next?
Two justices wanted to take the case. Guess Who!
To take an appeal “on cert” requires four justices.
Tellingly, for assault weapon and high-cap magazines, only Justices Scalia and Thomas wanted the Highland Park case. Antonin Scalia let Clarence Thomas write their piece. (It’s at the end of 11 pages of listed cases):
Because noncompliance with our Second Amendment precedents warrants this Court’s attention as much as any of our precedents, I would grant certiorari in this case. ...
Instead of adhering to our reasoning in Heller, the Seventh Circuit limited Heller to its facts, and read Heller to forbid only total bans on handguns used for self-defense in the home. All other questions about the Second Amendment, the Seventh Circuit concluded, should be defined by “the political process and scholarly debate.” But Heller repudiates that approach.
The question under Heller is not whether citizens have adequate alternatives available for self-defense. Rather, Heller asks whether the law bans types of firearms commonly used for a lawful purpose — regardless of whether alternatives exist. [The alternatives referred to were handguns and long guns like hunting rifles.]
The Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions. ... [Lots of citations omitted]
There is no basis for a different result when our Second Amendment precedents are at stake. I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.
There, they said it. The Second Amendment is a “second-class right”. At least for now.
But it really isn’t. Every amendment in the Bill of Rights — as parsed by the courts for more than 200 years — has exceptions. They are no more second class because of it.
Similar bans in NY and CT will likely come before the Supreme Court
The Second Circuit court of appeals upheld bans in October similar to Highland Park’s : New York State Rifle & Pistol Ass’n v. Cuomo and Connecticut Citizens’ Defense League v. Malloy.
Significantly, the Second Circuit agreed that semiautomatic assault rifles are "weapons protected by the Second Amendment." And that the statewide bans (which grandfathered existing weapons if they were registered) were "a 'serious encroachment' on the Second Amendment right."
Nonetheless, the Court ruled, the statutes pass constitutional muster. (The Court turned down two relatively minor aspects of the laws — New York's seven-round "load limit" and Connecticut's including a non-automatic Remington rifle.) To test the constitutionality of statutes, courts typically apply one of three levels of scrutiny. The Second Circuit, like several other courts in Second Amendment cases, chose an intermediate level of scrutiny: whether the statutes at issue are “substantially related to the achievement of an important governmental interest.” The Court found substantial evidence in the New York and Connecticut cases that supported the state's legislative judgments justifying the bans:
[S]emiautomatic assault weapons have been understood to pose unusual risks. When used, these weapons tend to result in more numerous wounds, more serious wounds, and more victims. These weapons are disproportionately used in crime, and particularly in criminal mass shootings like the attack in Newtown. They are also disproportionately used to kill law enforcement officers. Given the dearth of evidence that law‐abiding citizens typically use these weapons for self‐defense, plaintiffs’ concerns are speculative at best, and certainly not strong enough to overcome the “substantial deference" we owe to “predictive judgments of the legislature” on matters of public safety. ... The core prohibitions by New York and Connecticut of assault weapons and large‐capacity magazines do not violate the Second Amendment.
These are the most likely next big gun cases to come before the Court. The briefing schedule for Petitions for Certiorari (the legal term for petitioners asking for the record to be brought before the Court for review) will extend into next spring, so if the appeal is granted arguments could be as early as mid-fall 2016. The case would be percolating right around election time.
Daily Kos's Firearms Law and Policy group studies actions for reducing firearm deaths and injuries in a manner that is consistent with the Supreme Court's application of the Second Amendment.
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