In what, intentionally or not, will be regarded as a boon for President Obama’s campaign to turn recent terrorist attacks into a clarion call for more gun control, the Supreme Court today declined to hear a challenge to the ban by the city of Highland Park, Illinois, on so-called assault weapons and large-capacity bullet magazines. The ban had been upheld by the Seventh Circuit U.S. Court of Appeals.
Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented from the denial of certiorari. It requires the affirmative votes of four of the nine justices for the Court to accept a case for review.
Justice Thomas argued that the Seventh Circuit had misconstrued the Supreme Court’s 2008 ruling in District of Columbia v. Heller that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, particularly self-defense within the home. Although Heller held that the Second Amendment does not permit a ban on handguns even if “long guns” remain legally available, the Seventh Circuit reasoned that Heller did not foreclose the possibility that the Second Amendment is satisfied if “long guns,” pistols and revolvers are legally available for self-defense – consequently, leaving states and cities the latitude to ban other common firearms.
This misreads Heller, Justice Thomas responded. He explains:
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…. And Heller draws a distinction between such firearms and weapons specially adapted to unlawful uses and not in common use, such as sawed-off shotguns…. The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic fire- arms used for lawful purposes. Roughly five million Americans own AR-style semiautomatic 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.
The Seventh Circuit ultimately upheld a ban on many common semiautomatic firearms based on speculation about the law’s potential policy benefits…. The court conceded that handguns—not “assault weapons”—“are responsible for the vast majority of gun violence in the United States.” … Still, the court concluded, the ordinance “may increase the public’s sense of safety,” which alone is “a substantial benefit.”… Heller, however, forbids subjecting the Second Amendment’s “core protection . . . to a freestanding ‘interest- balancing’ approach.” … This case illustrates why. If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing.
The full dissent from the denial of review in the case, Friedman v. Highland Park, is here (scroll down).