Faced with astonishing arguments from pro-gun advocates, SCOTUS continues to defer taking an appeal in a Second Amendment gun rights case.
A city's ban on assault weapons and high-capacity magazines is on the Court's doorstep. It is Friedman v. Highland Park. (A challenge to similar bans enacted by the states of New York and Connecticut is likely to arrive at the Court in a few months.)
Guns galore, assault rifles mostly. The pro-guns crowd must love this statuary!
Federal appeals courts have upheld every assault weapons ban to come before them. So gun rights litigators have the bit in their teeth, eager to convince SCOTUS to bless their sweepingly broad interpretation of the Second Amendment.
Will the Court ultimately take this case? It has been "re-listed" on its calendar three times.
So far, the Supreme Court has declined to take every Second Amendment appeal to come before it since its seminal 5-4 decisions in Heller (2008) and McDonald (2010). Come below the elusive target ...
Disclaimer. Nothing in this diary constitutes legal advice and it is not to be acted upon as legal advice. Civil and criminal law are specialties. If you need advice on these matters, get it from a professional skilled in the law of your state.
Comments are welcome, even argumentative ones that are civil and advance understanding of the issues the lawsuit raises.
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Arie Friedman is a pediatrician in Highland Park, Illinois, 25 miles north of Chicago. Friedman owns automatic weapons which he shoots at a gun range outside the city.
Highland Park is a municipality of about 30,000, a 90% white population with an average family income of $117,000 that usually votes for Democrats. In 2013, it passed an ordinance banning assault weapons and magazines with more than ten rounds of ammunition.
Highland Park's ordinance was similar to the Federal assault weapons ban in effect from 1994-2004 (which sunset by its terms and was not renewed). The ordinance was upheld in Federal district court and then by the Seventh Circuit Court of Appeals in a 2-1 decision.
from the Court of Appeals opinion ...
McDonald holds that the Second Amendment creates individual rights that can be asserted against state and local governments. But neither it nor Heller attempts to define the entire scope of the Second Amendment – to take all questions about which weapons are appropriate for self-defense out of the people’s hands. Heller and McDonald set limits on the regulation of firearms; but within those limits, they leave matters open.
The best way to evaluate the relation among assault weapons, crime, and self-defense is through the political process and scholarly debate, not by parsing ambiguous passages in the Supreme Court’s opinions. The central role of representative democracy is no less part of the Constitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legislative process.
The Issues
Each side gets to frame the issue(s) to be decided. To understate it, they differ.
City of Highland Park:
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?
There can be no doubt that like all firearms, "assault weapons" are inherently dangerous when used as designed. And it is a fact that assault weapons, high-capacity magazines or both
were used in more than half the mass shootings in America between 1982 and 2012.
Highland Park points out that more than a quarter of the US population lives in areas that have banned assault weapons.
Every court to have considered restrictions such as those imposed by Highland Park upon assault weapons and large capacity magazines has found them to be consistent with the Second Amendment.
Petitioners - Friedman and the Illinois State Rifle Association, with 24 states and the NRA supporting their appeal - have a dramatically different take on what is at stake. They rest their statement of the issues on self-defense and on how "common" assault rifles are:
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.
Petitioners' Astonishing Pro-Gun Arguments
- AR-type weapons are common. It is the best-selling rifle type in the United States. "[T]hat alone is enough to make Highland Park’s bans categorically unconstitutional."
Voila! Here is gun proliferation being presented as its own best argument against gun reform. What is so common must be constitutional ... mustn't it?
- Magazines larger than ten rounds are even more popular than the banned firearms.
Ammo proliferation, even more so!
- Assault rifles are actually safe and safer. Highland Park's ordinance singles out certain features "which have no effect on the firearms’ basic function but only serve to make those arms safer."
Characteristics the gun industry once derided as "cosmetic only" when it argued against a Federal assault weapons ban, it now insists are actually safety features. (N.b. Highland Park's ordinance prohibits several assault rifles, the AR-15 and others, by name, not just by features.)
- Good for self-defense. "AR-15's are particularly appropriate for home defense because they are typically chambered for .223 caliber bullets, which lose velocity relatively quickly after passing through walls and thus pose a reduced risk to innocent people in the home."
On its face, this argument is unlikely to reassure your next door neighbors.
Assault rifles can accept a variety of ammunition. According to Urban Dictionary: "These rifles, when sighted in, are accurate up to 500 yards, with a range well beyond that." And the "Standard magazine (or clip, if you prefer) is 30 rounds."
Among the firepower Adam Lanza carried into Sandy Hook school was his mother's Bushmaster assault weapon and ten 30-round magazines of .223 caliber ammunition. He killed 27 people and injured another, firing more than 150 shots in less than five minutes.
Adam Lanza's Bushmaster .223-caliber semiautomatic assault rifle and a high-cap magazine
- "
Review Is Needed To Correct the Lower Courts’ Massive Resistance to Heller and Their Refusal To Treat Second Amendment Rights as Deserving Respect Equal to Other Constitutional Rights."
In other words, the law after
Heller has been evolving in the wrong direction ... and SCOTUS has to fix it, because high-powered rifles designed to kill in military combat should be available for civilian home defense no matter what local voters and officials want. What a call for policy activism by SCOTUS, to overrule states and localities!
Petitioners' arguments on the law are almost as astonishing.
There is no conflict among the Federal courts on these issues. SCOTUS takes only a small number of appeals - 70-80 from thousands urged upon the Court each term. To winnow the cases, SCOTUS often looks for a conflict in the appellate courts below. But here, every Federal court presented with a ban on assault weapons has upheld it. For example: the DC Circuit in SCOTUS's "front yard" in "Heller II;" (2011), the Ninth Circuit in a ban on high-capacity magazines in Fyock v. City of Sunnyvale earlier this year; and the New York and Connecticut cases in the Second Circuit - New York State Rifle & Pistol Ass’n v. Cuomo and Connecticut Citizens’ Defense League v. Malloy.
So petitioners are left to argue that the rationale used in those cases shows a division of authority, saying it is a "chaotic flurry of doctrinal tests." "Chaotic" is hyperventilating and that "flurry of tests" was a feature, not a bug, of the Court's Second Amendment opinions. Scholars correctly point out that SCOTUS's unprecedented majority opinions in Heller (by J. Scalia) and McDonald (by J. Alito) left open the tests to apply to Second Amendment cases.
What the challengers here view as a defect was deliberate. In his opinion for the majority in Heller, Justice Scalia wrote:
Justice Breyer chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States (1879), our first in-depth Free Exercise Clause [First Amendment] case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.
This is the Court - Justice Scalia, of all people! - leaving matters open, inviting lower courts to work through the brand new law the majority fashioned. Quite possibly, the justices felt the level of scrutiny for a 2A gun case merited more than one standard, depending on what - specifically - was being challenged. Whatever, the Court is waiting, deliberately, refusing to take any of more than 60 constitutional gun appeals pressed upon it in the five-plus years since
McDonald.
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Observations
(1) Republican attorneys general of 24 states filed an amicus friend of the Court brief that reveals a telling concern of the pro-gun interests:
In case after case, lower federal courts have construed Heller narrowly and limited the decision to its facts. Yet this Court has refused certiorari [judicial review], leading lower courts to continue and exacerbate this trend.
[E]ach case that upholds a ban poses an increasing threat to the policy in most States by suggesting that a federal ban could be constitutional.
(2) The National Shooting Sports Foundation, a trade association representing the gun industry (manufacturers, distributors and dealers), also filed an
amicus brief. It argues the popularity of the banned weapons, "the widespread use of these versatile firearms for a variety of lawful purposes" such as hunting, target practice and "competitive shooting", in addition to home defense with a "... nearly-perfect blend of safety, reliability, accuracy, effectiveness, and ease of use."
(3) None of these cases "takes our guns away." Highland Park's ordinance gave its citizens the choice to store their assault rifles and magazines outside city limits or surrender them to the police. The New York and Connecticut statutes grandfathered pre-existing assault weapons provided the owners registered them with state authorities.
(4) Pro-gun lobbyists and commenters argue strenuously that gun reform is an election-losing proposition for Democrats. This argument - support for it is debatable - depends entirely on turning out the pro-gun vote in marginal districts. This is not likely to be an issue in Highland Park, IL, nor in Lyons, IL, a suburb next to Chicago where the City Council voted in a tough ordinance requiring gun dealers (it has only one) to conform to a host of measures to document gun buyers, limit straw purchasing and enhance law enforcement's ability to track potential buyers who do not qualify to own guns.
(5) The Heller decision dealt with handguns. While the majority opinion did not preclude other types of firearms for self-defense, high-powered semiautomatic rifles are at a polar extreme from handguns. Despite the zeal of the gun merchants and the macho of the power-gun hobbyists, a rifle patterned after a weapon for combat use - and not common in law enforcement except in the hands of specially trained, skilled and disciplined marksmen - may not be accepted as a weapon to be employed responsibly by a civilian in her or his home.
(6) J. Scalia put a teaser about military-style firearms in his Heller opinion. He was musing about the connection of the two clauses in the Second Amendment - the militia rationale and an individual right to arms:
It may be objected that if weapons that are most useful in military service — M16 rifles and the like — may be banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as
effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
How to take this observation? The petitioners in
Friedman argue that assault rifles are common, thereby finessing that military/militia/civilian conundrum. Is it so easily dismissed? Especially when extremist gun rightists insist they have arms to protect them from the tyranny of government? Will this line of argument sit well with a majority of judges?
(7) SCOTUS is in no rush to clarify the sweep of the Second Amendment right it created in 2008. It may be that the 5-4 majorities in Heller and McDonald were fragile and that fifth vote is elusive. As it takes only four justices to grant certiorari, neither side may see a reliable victory in many of these 2A cases. It will certainly get another opportunity when the petitioners in the New York and Connecticut cases appeal to the Supreme Court.
The Court did accept an appeal in a gun case last Friday, October 30. The issue was whether two guys convicted of domestic relations misdemeanors (for recklessness, not intention conduct) forfeit their gun rights. The Second Amendment was also raised as an issue, but the Court dodged it:
Notably, however, the Court agreed to review only the recklessness question; it declined to review a second question presented by the petition, which asked the Justices to rule on whether the ban on possession of firearms by individuals convicted of domestic violence violated their rights under the Second Amendment.
We will stay tuned.
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