By Robert Barnes,
The Supreme Court declined Monday to review whether cities and states can prohibit semiautomatic, high-capacity assault weapons, which have been used in some of the nation’s most deadly recent mass shootings.
In turning away a case from a Chicago suburb, the justices decided they would not pass judgment on a kind of weapons ban that is also in place in seven states.
The decision was a disappointment for gun rights advocates, who have been unable to persuade the justices to take a case that might amplify and extend the court’s 2008 decision that the Second Amendment provides the right for an individual to keep a weapon in the home.
The case rejected by the justices involves a ban imposed by Highland Park, Ill. It prohibits AR-15s and AK-47s, and defined as assault weapons semiautomatic guns that have high-capacity magazines. Seven states — Maryland, California, Connecticut, Hawaii, Massachusetts, New Jersey and New York — have similar bans.
Justices Clarence Thomas and Antonin Scalia wrote that the court should review the ban because it “flouts” the court’s Second Amendment jurisprudence. They criticized lower court decisions that have allowed jurisdictions to impose what Thomas called “categorical bans on firearms that millions of Americans commonly own for lawful purposes.”
The court’s action Monday continues a pattern. After recognizing the individual right for the first time in District of Columbia v. Heller in 2008, the court made clear in a subsequent case that state and local governments, like Congress, could not prohibit individual gun ownership.
But since then, the justices have avoided all cases that might clarify whether that right is more expansive or which restrictions are too burdensome.
Monday’s announcement that the court would not review the Highland Park case comes at a time of national revulsion over mass shootings, most recently in San Bernardino, Calif. But there is a hot political debate about how to confront the problem.
President Obama and leading Democrats have called for additional gun control; in his address to the nation Sunday night, Obama said Congress should make it harder to sell what he called “powerful assault weapons.” Republican presidential candidates have shown their support for gun rights with events at shooting ranges and rejection of any suggestion of new laws.
Gun rights advocates say that even the term “assault weapons” is propaganda, and that cities and states continue to put unreasonable restrictions on the gun ownership right recognized by the court.
But the justices have yet to find a case they think requires their intervention.
The justices have been privately debating the Highland Park case for months. As is its custom, the court did not say why it found the case unworthy of review, and it is important to remember that such decisions are not rulings on the merits of the case.
One possible explanation for the court declining to take the case is that there is no disagreement among lower courts about the legal justification for the firearms bans. Such splits are the most common reason the court accepts a case.
It also could be that the court is closely divided on the issue and that neither side is confident how a pivotal member — most likely Justice Anthony M. Kennedy — would vote if forced to make a choice.
What is clear is that Thomas and Scalia were unable to persuade the other conservatives who formed the Heller majority to take the new case.
By its inaction, the court has left in place lower court rulings that allow restrictions on carrying a weapon outside the home, among other things, and on the kinds of guns that can be prohibited.
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“By rejecting this case, today the Supreme Court sided with a community that has taken action to protect itself from the type of violence we’ve seen in San Bernardino, on college campuses and in movie theaters,” said Dan Gross, president of the Brady Center and Campaign to Prevent Gun Violence.
The decision that the Supreme Court chose not to review came from a divided panel of the U.S. Court of Appeals for the 7th Circuit. That ruling noted a statement in the Heller decision that said legislatures retained the ability to prohibit “dangerous and unusual” weapons, and Judge Frank Easterbrook said the guns named by Highland Park qualified.
“Why else are they the weapons of choice in mass shootings?” he wrote. He said a ban may not prevent mass shootings “but it may reduce the carnage if a mass shooting occurs.”
Gun rights advocates and 24 states had asked the Supreme Court to get involved, because the bans violated the intent of Heller.
They said the bans include “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,” said the brief from Arie Friedman of Highland Park and the Illinois State Rifle Association.
Thomas and Scalia agreed with that. “The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting,” Thomas wrote. “Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.”
The case is Friedman v. Highland Park.
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