(Editor’s note: This article is a submission from freelance writer Max Slowik)
The Supreme Court today refused to grant an appeal challenging an Illinois city’s gun ban that prohibits the sale, purchase and even possession of “assault weapons” as defined by local Highland Park law.
Banned firearms include many popular guns including AR-15s, AR-10s and AK-pattern rifles by name. It also bans “large-capacity” magazines or any magazines that hold more than 10 rounds.
The Supreme Court has not shown interest in Second Amendment cases following Heller and McDonald cases, the high water mark for establishing gun rights in the U.S. today. Together they hold that gun ownership is a privately-held right belonging to individuals and that self-defense is a primary function of the Second Amendment, and also that any law that bans an entire class of firearms, particularly those in common use, is unconstitutional.
The NSSF estimates that there are as many as 5 million ARs in the U.S. alone, not counting other guns included in the ban, a point that the lower court did not dispute. The Supreme Court did not provide any explanation for why the case was rejected.
“It did not seem to be a response to recent mass shootings,” said Lyle Denniston, writing for the SCOTUS Blog, “The Court has been studying the case since early October; it was due to be considered at seven consecutive private Conferences of the Justices.”
The simplest explanation, particularly for the gun rights community, is that the Court’s majority just doesn’t want to test gun bans, turning a Constitutional blind eye to the issue. Justice Clarence called it an act of “noncompliance.”
Thomas, joined by Justice Antonin Scalia, wrote a 6-page dissent (.pdf) detailing the arguments for overturning the City of Highland Park’s “assault weapons” ban, arguing that the ban is in direct violation of earlier Supreme Court decisions.
“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,” wrote Thomas.
The lower court’s decision to uphold the gun ban was based on a limited reading of Heller, he explained, picking and choosing parts of the Supreme Court decision not to overturn the law. In the case, the lower court asked if the banned guns were common when the Second Amendment was ratified, in 1791. But Heller specifically states that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
“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,” he continued.
Thomas also argued that the Court’s refusal to hear the case was counter to their principles when overturning other unconstitutional laws.
“The Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions.
“There is no basis for a different result when our Second Amendment precedents are at stake. I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.”
As mentioned, this is not the first time SCOTUS has punted on a 2A issue in recent years. Most likely, it won’t be the last either.