Continuing a pattern that dates back some five years now, the Supreme Court has once again declined to hear an appeal in a case involving a challenge to a gun control law, this time provoking a rare dissent from two of the Court’s conservative Justices:
WASHINGTON — The Supreme Court on Monday refused to hear a Second Amendment challenge to an Illinois ordinance that banned semiautomatic assault weapons and large-capacity magazines. As is their custom, the justices gave no reason for turning down the appeal in the case, Friedman v. City of Highland Park, No. 15-133, which comes at a time when the national debate on gun control has been reignited by terrorist attacks in Paris and San Bernardino, Calif.
Justices Clarence Thomas and Antonin Scalia dissented, saying that lower courts have been ignoring Supreme Court precedents on Second Amendment rights.
The ordinance, enacted in 2013, banned some weapons by name, including AR-15s and AK-47s. More generally, it prohibited possession of what it called assault weapons, defining them as semiautomatic guns that can accept large-capacity magazines and have features like a grip for the nontrigger hand. Large-capacity magazines, the ordinance said, are those that can accept more than 10 rounds.
In 2008, in District of Columbia v. Heller, the Supreme Court struck down a federal law that banned keeping handguns at home for self-defense, finding for the first time that the Second Amendment protects an individual’s right to bear arms. In 2010, the court extended the principle to state and local governments.
Since then, the court has turned away appeals in any number of Second Amendment challenges to gun control laws.
The ordinance, from Highland Park, Ill., in the Chicago suburbs, was challenged by the Illinois State Rifle Association and Dr. Arie S. Friedman, who at his home had kept guns and magazines for self-defense that were banned by the ordinance. The term “assault weapons,” they told the justices, “is an imaginary and pejorative category.”
The Illinois rifle group and Dr. Friedman urged the Supreme Court to address what they called “the lower courts’ massive resistance to Heller and their refusal to treat Second Amendment rights as deserving respect equal to other constitutional rights.”
A supporting brief filed by 24 states said the ordinance “bans many commonly used firearms and the standard capacity magazines for many popular firearms.”
In April, a divided three-judge panel of the United States Court of Appeals for the Seventh Circuit, in Chicago, upheld the Highland Park ordinance.
“A ban on assault weapons and large-capacity magazines might not prevent shootings in Highland Park (where they are already rare), but it may reduce the carnage if a mass shooting occurs,” Judge Frank H. Easterbrook wrote for the majority. In any event, he added, “if a ban on semiautomatic 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.”
Lyle Denniston comments:
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.
As is always the case in these situations, it’s important to remember that one should be careful in attempting to draw conclusions from the Supreme Court’s decision not to accept a case for appeal. On its face, all the decision really means is that there were not four Justices on the court who believed that the Court needed to review the case, and that is a decision that each of the Justices who voted against accepting the case for appeal may have arrived at for different reasons. Obviously, the more liberal Justices on the Court likely felt that the Seventh Circuit Panel got the case right and the matter didn’t need to be reviewed at all. As for the remaining Justices on the Court, some may have felt that, even if the issue raised by the Highland Park law is an important one, this case has characteristics to it that made it problematic for the Court to pick as the vehicle by which it would make a national statement on the issue, or that the issue has not been fully litigated in other Circuit Courts of Appeal around the country to the point where it is necessary for the Supreme Court to step in. Additionally, there doesn’t presently appear to be a split among the Circuit Courts of Appeal on this particular issue, and that is typically a reason why the Court is reluctant to step into a matter until it appears there is a reason for the Court to get involved. This is what happened last year when the Court initially declined to hear a series of cases involving same-sex marriage that had all struck down state law bans, only to later accept an appeal from the Sixth Circuit Court of Appeals when that Court upheld the bans of four states in the series of cases that eventually resulted in the Obergefell v. Hodges decision. Additionally, while Justices penning specific dissents from a decision not to accept a case for appeal is not typical, it’s also not entire unusual so the fact that Thomas and Scalia, who obviously would have preferred the appeal be accepted, did so here shouldn’t raise any real red flags.
Notwithstanding that, it is interesting to note that the Supreme Court has not accepted an appeal in any case involving the Second Amendment since it handed down its 2010 decision in McDonald v. Chicago, the case which ruled that the Second Amendment was incorporated into the Fourteenth Amendment to apply against the state like most of the other provisions of the Bill of Rights, thus meaning that Chicago’s broad handgun ban unconstitutional under the precedent established in District of Columbia v. Heller. In 2013, for example, the Court declined to accept an appeal in a case challenging New York’s highly regulated and restrictive process for obtaining a permit to carry a concealed weapon in public. In 2014, the Justices similarly declined to hear an appeal regarding a challenge to a similarly restrictive New Jersey law regarding carrying weapons in public. Finally, and most recently, the Court in June declined to hear an appeal involving a challenge to a San Francisco law that requires handguns kept in the home to be kept in a locked box, as well as other ‘safety’ measures, when not being used. Justices Thomas and Scalia dissented from that decision just as that dissented today, arguing that the law at issue in that case was a direct contradiction of the Court’s clear intent in the Heller and McDonald cases. While the Justices have been reluctant to act on Second Amendment cases since McDonald, the issue has been litigated heavily in District Courts and the Circuit Courts of Appeal on a wide variety of issues, including decisions in Chicago striking down a law that heavily regulated gun sales, a pair of decisions related to the District of Columbia’s concGealed carry laws, and a Ninth Circuit decision that struck down California’s concealed carry law. Additionally there have been challenges to state law enhancements of gun control legislation in New York State and Connecticut that were passed in the wake of the Sandy Hook shooting in which Federal Courts have upheld the new laws against challenges, and Federal Appeals Courts recently upheld the core of both the New York and Connecticut statutes. These two cases will presumably be presented to the Justices for review as well, especially since many have argued that the laws directly contradict the holdings in Heller and McDonald. Given today’s action, or lack thereof really, though, it’s unclear what the Court will do in those cases.
Given this pattern, it seems clear that the Justices are content to let the District and Circuit Courts deal with this issue for the time being. At some point, though, it seems clear that they will be required to step in and accept at least some cases dealing with this issue. There are already Circuit splits developing on the issue of concealed carry laws, for example, and that is generally something that prompts the Justices to eventually accept a case for appeal. Additionally, the latest round of political developments regarding the gun control issue makes it seemingly inevitable that additional laws will be passed at the state level and that someone will challenge those laws. That would seem to make it the Court’s current reluctance to step into this issue again something that cannot last much longer.
Here’s the dissent from Justices Scalia and Thomas:
