From the first one passed by California 34 years ago to the most recent one passed by Washington last month, state assault weapons bans, typically including a limit on the capacity of ammunition magazines, have sparked sharp division and litigation. But none has ever been ruled on by the Supreme Court. This could be about to change. Since I first speculated on this one month ago, even more challenges to these bans have begun working their way through the lower courts. Given that judges in these courts have issued opposite rulings on various bans—including last month in Illinois—it seems inevitable the Supreme Court will soon have to review one or a consolidated group of these cases to bring clarity to the situation.
One reason for renewed litigation is that assault weapons bans were proposed in several states in the past 12 months. Besides Washington, Delaware enacted a ban in June, and Illinois enacted its ban in January. But Colorado failed to get a ban out of committee, which was likewise the case in New Mexico. In Michigan, where several new gun laws were passed this session, the legislature pointedly avoided taking up a ban. In all five of those states, Democrats control both houses of the legislature, and the governorships. In a special legislative session called by the Republican governor but not yet scheduled, Tennessee will also take up a ban bill that is almost certainly doomed to failure, along with some other proposed reforms. As it stands now, 10 states plus the District of Columbia have assault weapons bans on the books. But all of them may fail to survive judicial scrutiny, which could happen soon.
In the three decades since California passed its ban in 1989, the Supreme Court has never weighed in on the constitutionality of prohibiting manufacture, sale, and purchase of assault weapons, which in most bans are a listed subset of semi-automatic firearms with certain features. Instead, the justices have allowed lower court rulings that uphold state bans to carry the day without further review. Now, however, confronted with a growing number of contradictory rulings on bans at the district and appeals court levels, the high court will find it hard to avoid stepping in to settle the matter with a definitive ruling of its own. Advocates of state bans (and of a federal ban) have good reason to worry, given the Supremes’ loosening of gun restrictions in its firearms decisions since 2008.
In District of Columbia v. Heller (2008), they affirmed that Americans have a “right to keep and bear arms” and that the District of Columbia government cannot ban residents from keeping a loaded handgun for self defense in their residences. Then they made Heller apply to the states under the 14th Amendment in McDonald v. City of Chicago (2010). Last June, in Bruen v. New York State Pistol and Rifle Association, they told New York that its century-old permit system governing the public carrying of concealed firearms collides with the court’s 21st-century interpretation of the 18th century-era Second Amendment.
After the Heller ruling, lower courts scrambled to come up with a two-step process to determine whether a particular law violates the Second Amendment. First, does the law historically involve the amendment? If so, is there a legitimate public interest the law is designed to address—such as reducing violence? But the Bruen decision specifically bars lower courts from making decisions that include that second step. Now, judicial scrutiny of gun laws must be solely based on text of the Second Amendment informed by history and tradition, public interest be damned.
Consequently, the Supreme Court or an appeals court has vacated recent lower court decisions on guns and remanded them for reconsideration in light of Bruen. For example, in Bianchi v. Frosh, a ruling upholding Maryland’s decade-old assault weapons ban was remanded to the Fourth Circuit Court of Appeals. A district court ruling on a challenge in Miller v. Bonta to California’s ban was remanded by the Ninth Circuit Court for a post-Bruen redo after the district judge in the case, Roger Benitez, issued a ruling overturning the ban, garnering him the nickname of “Saint Benitez” from ecstatic gun rights advocates. It’s unlikely that his rewrite—expected any day now—will take a different tack. The question is whether the Ninth Circuit will adjust its typically liberal views in light of Bruen when it reviews the case.
Illinois passed its ban—the Protect Illinois Communities Act—after last summer’s killing with an AR-15 variant of seven people and wounding of 48 at a July 4th parade in the suburb of Highland Park, north of Chicago. U.S. District Court Judge Virginia Kendall ruled in February that the Illinois ban on assault weapons and large-capacity magazines, as well as a similar ban by the City of Naperville, are “constitutionally sound.” She denied challengers’ petition for a temporary restraining order and injunction stopping enforcement of the bans. On appeal, the Seventh Circuit Court also denied an injunction.
But Friday, District Judge Stephen P. McGlynn enjoined the ban in the consolidated case of Barnett v. Raoul on the grounds that the plaintiffs were likely to succeed on the merits of the case:
As Americans, we have every reason to celebrate our rights and freedoms, especially on Independence Day. Can the senseless crimes of a relative few be so despicable to justify the infringement of the constitutional rights of law-abiding individuals in hopes that such crimes will then abate or, at least, not be as horrific? More specifically, can PICA be harmonized with the Second Amendment of the United States Constitution and with Bruen? That is the issue before this Court. The simple answer at this stage in the proceedings is “likely no.” The Supreme Court in Bruen and Heller held that citizens have a constitutional right to own and possess firearms and may use them for self-defense. PICA seems to be written in spite of the clear directives in Bruen and Heller, not in conformity with them. Whether well-intentioned, brilliant, or arrogant, no state may enact a law that denies its citizens rights that the Constitution guarantees them. Even legislation that may enjoy the support of a majority of its citizens must fail if it violates the constitutional rights of fellow citizens. For the reasons fully set out below, the overly broad reach of PICA commands that the injunctive relief requested by Plaintiffs be granted. [...]
“PICA did not just regulate the rights of the people to defend themselves; it restricted that right, and in some cases, completely obliterated that right by criminalizing the purchase and the sale of more than 190 ‘arms,'”
Meanwhile, on Tuesday, Supreme Court Justice Amy Coney Barrett gave the City of Naperville until Monday, May 8, to respond to an emergency petition calling on the high court to impose an injunction on the city’s assault weapons ban. Supreme Court justices are typically loath to handle matters on an emergency basis. And just because Barrett is asking for the city’s response doesn’t mean the petition will ultimately be granted. As Steve Gutowski at The Reload remarks:
The move may indicate the Court is getting closer to taking up a case against so-called assault weapons bans. [...]
If the Court does issue an injunction against the ordinance, it will signal similar bans adopted by ten states are unconstitutional. That could upend the debate over gun control in America, which has largely centered around prohibitions on the AR-15 and similar guns. But, while Barrett’s request for a brief increases the odds the case will see action, most cases where briefs are requested do not get a full hearing.
Whatever the justices decide regarding this case, judging the constitutionality of these bans is not something they likely will continue to avoid much longer.
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Related: Now that “text, history and tradition” are the watchwords for judicial scrutiny of the constitutionality of any gun-related law, you may find the Repository of Historical Gun Laws of interest.