April 23, 2021

Supreme Court’s denial of assault weapon case won’t end gun debate

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Guns are seen near the site of a shootout between police and suspects in the San Bernardino shootings, December 4, 2015 in San Bernardino, California.  Credit: San Bernardino County Sheriff's Department via Twitter.

Guns are seen near the site of a shootout between police and suspects in the San Bernardino shootings, December 4, 2015 in San Bernardino, California. Credit: San Bernardino County Sheriff’s Department via Twitter.

By Tony Mauro, From Supreme Court Brief

Guns are seen near the site of a shootout between police and suspects in the San Bernardino shootings, December 4, 2015 in San Bernardino, California.

Guns are seen near the site of a shootout between police and suspects in the San Bernardino shootings, December 4, 2015 in San Bernardino, California.

Photo: San Bernardino County Sheriff’s Department via Twitter.

Amid the renewed debate over gun control prompted by the San Bernardino shootings on Dec. 2, the U.S. Supreme Court decided Monday not to join the discussion.

The court’s decision to pass up a challenge to an Illinois assault-weapon ban may encourage other government entities to pass similar bans, but it does not signal an end to litigation over what kinds of firearm regulation will pass muster under the Second Amendment.

The court denied certiorari in Friedman v. City of Highland Park, Illinois, a lawsuit against the city’s ordinance that bans categories of weapons like those used in the California massacre. The Chicago suburb’s law outlawed so-called assault rifles and large-capacity magazines.

A dissent by Justice Clarence Thomas, joined by Antonin Scalia, suggested that the legal debate is far from over and scolded appeals courts for misinterpreting the court’s precedents on the Second Amendment.

“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,” Thomas wrote. “I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.”

David Kopel, gun rights advocate and Second Amendment Project director at the Colorado-based Independence Institute, said, “There’s still tons of litigation out there.” California, Connecticut, Hawaii, Maryland, Massachusetts, New Jersey and New York have bans similar to Highland Park’s ordinance.

The high court’s denial of certiorari may result from the fact that so far, lower federal courts have ruled in favor of statutes like the one in Highland Park—depriving the court of a circuit conflict to resolve.

In October, the U.S. Court of Appeals for the Second Circuit upheld similar laws in New York and Connecticut, following the lead of the Seventh Circuit, which upheld the Highland Park statute. The Ninth Circuit in March endorsed a ban on large-capacity magazines in California. A contrary ruling in a future case could prompt the court to take another look.

“If you look around the country, those cases that have been decided have been decided in favor of these laws,” said Holland & Knight partner Steven Elrod, the corporation counsel for the city of Highland Park. He wrote the ordinance before the court.

Based on the Seventh Circuit ruling and the Supreme Court’s action Monday, Elrod predicted that a Cook County ordinance against assault weapons that is being challenged in Illinois courts “will also be upheld.”

Elrod said he modeled the Highland Park ordinance after Cook County’s, and both were “within the teachings and the parameters” of the Supreme Court’s rulings in District of Columbia v. Heller, the 2008 case that proclaimed an individual right to bear arms under the Second Amendment, and McDonald v. Chicago, the 2010 ruling that said the right applied to state as well as federal regulations of firearms. The court in Heller said the Second Amendment did not prohibit all forms of regulation of firearms.

Elrod also said he was certain that the Supreme Court decided to deny review in the Highland Park case long before the San Bernardino episode. The case first went before the justices at their private conference on Oct. 9, and was relisted seven times—probably to give Thomas and Scalia time to prepare their dissent from denial of review.

“That dissent was not written over the weekend,” Elrod said. “Clearly the majority of the court was ready to deny review all along.”

In the Highland Park case, the Seventh Circuit referred to mass violence in upholding the ordinance. “If a ban on semi‐automatic guns and large‐capacity magazines reduces the perceived risk from a mass shooting and makes the public feel safer as a result, that’s a substantial benefit,” Judge Frank Easterbrook wrote.

But Thomas said the Seventh Circuit got it wrong in the Highland Park case.

“Based on its crabbed reading of Heller, the Seventh Circuit felt free to adopt a test for assessing firearm bans that eviscerates many of the protections recognized in Heller and McDonald,” Thomas wrote.

The Seventh Circuit ignored the fact that such firearms are commonly used for legal purposes, Thomas added. “Roughly five million Americans own AR-style semi-automatic rifles. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.”

Lawyers for Dr. Arie Friedman and the Illinois State Rifle Association, the challengers in the case, agreed.

“In the ordinance challenged by the plaintiffs in this case, Highland Park has banned the possession of a class of arms that includes some of the most commonplace firearms in the nation—including the immensely popular AR-15, which is ‘the best-selling rifle type in the United States,’ ” David Thompson of Washington’s Cooper & Kirk said.

Thompson added, “There is thus simply no plausible dispute that the firearms and magazines banned by Highland Park aren’t typically ‘possessed by law-abiding citizens for lawful purposes.’ Under Heller, that alone is enough to make Highland Park’s bans categorically unconstitutional.”

Kopel said the fate of such bans is still up in the air. “The court’s methodology in Heller seems to say you cannot prohibit common arms, and yet we still have these decisions which uphold bans on common arms. So the question is: How long is the court willing to go along with lower courts’ defiance?”

For more on this story go to: http://www.nationallawjournal.com/supremecourtbrief/id=1202744195144/Supreme-Courts-Denial-of-Assault-Weapon-Case-Wont-End-Gun-Debate#ixzz3tlTbjAbz

 

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