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Court leaves an assault weapon ban intact

The Supreme Court refused on Monday to clarify the types of guns that may be banned, but in the process it left intact an Illinois city’s law that denied anyone in the community the right to have one of the most popular firearms: assault weapons.  The law also banned large-capacity bullet magazines.  Two Justices complained in a dissent that the Court was turning the Constitution’s Second Amendment into a “second-class right.”

Since the Supreme Court in 2008 first established a constitutional right to have a gun, at least for self-defense, it has not accepted a case that would spell out how far the right extends.  It said initially that a government may ban a sawed-off shotgun and a machine gun, but has not gone further.

At issue in the new case, Friedman v. City of Highland Park, was the constitutionality of a 2013 ordinance.  It prohibited the sale, purchase, or possession of semi-automatic guns, including those used with magazines with more than ten rounds of ammunition.  It was agreed, during a challenge to the ordinance, that the ban includes the widely popular AR-15 rifle — the civilian equivalent of the military’s standard M-16.  The challengers contended that these are not machine guns, because a pull of the trigger only fires one shot, not repeated firings.

Because the brief order denying review of the ordinance did not contain any explanation, there is no way to know why most of the Justices chose not to grant review.  It did not seem to be a response to recent mass shootings, because the Court has been studying the case since early October; it was due to be considered at seven consecutive private Conferences of the Justices.

Justice Clarence Thomas, joined in dissent by Justice Antonin Scalia, argued that the U.S. Court of Appeals for the Seventh Circuit, in upholding the Highland Park ban, had failed to follow the Court’s 2008 decision in District of Columbia v. Heller — the first ruling in favor of a personal right to a gun under the Second Amendment.

The Seventh Circuit, the dissenters said, interpreted the Heller decision to protect only a total ban on the use of a handgun for self-defense inside one’s home.  Any other gun-control measure, the Seventh Circuit said, should be defined by “the political process and scholarly debate.”

That approach, Thomas wrote, was specifically rejected in the Heller ruling.

The Seventh Circuit, the dissenting opinion added, “felt free to adopt a test for assessing firearms bans that eviscerates many of the protections” the Court has recognized.  One facet of the new Second Amendment test, the dissenters complained, was that it applied the Second Amendment only to the kind of arms that were common at the time the Second Amendment was ratified — that is, in 1791.

A second part of its test, Thomas said, was to ask whether the banned guns related to the efficient operation of the state militia.  That wrongly delegates to states and localities the power to decide which firearms people may possess, the dissenters said.

Further, according to the dissent, the Seventh Circuit considered whether law-abiding citizens had adequate means of self-defense without the banned weapons being available.

Recommended Citation: Lyle Denniston, Court leaves an assault weapon ban intact, SCOTUSblog (Dec. 7, 2015, 10:07 AM),