A divided Supreme Court declined Monday to hear a case on the constitutionality of an Illinois town’s ban on some firearms and ammunition magazines, amid growing debate over the need for gun control in the wake of mass shootings in the country.
The decision not to hear the case, Friedman v. Highland Park, leaves in place the Chicago suburb’s ban of assault weapons and magazines with the ability to accept more than 10 rounds.
Justice Clarence Thomas wrote a dissent, joined by Justice Antonin Scalia, saying that allowing such gun control measures flouts Second Amendment precedents. Had the court taken the case, it would have been the first time the justices weighed in on Second Amendment rights since 2010.
The case reached the high court amid persistent national concern about mass shootings at schools, theaters and other public spaces in the United States. Many of the deadliest shootings have happened in the five years since the Supreme Court last decided a gun rights case.
Thomas’ dissent speaks to the potential for gun control to protect the public, the morning after President Barack Obama addressed the nation and called for Congress to pass a gun control measure.
“The Seventh Circuit ultimately upheld a ban on many common semiautomatic firearms based on speculation about the law’s potential policy benefits,” Thomas wrote. “The court conceded that handguns — not ‘assault weapons’ — ‘are responsible for the vast majority of gun violence in the United States.’”
The Seventh Circuit concluded the Highland Park law “may increase the public’s sense of safety” as a “substantial benefit,” even though a previous Supreme Court ruling forbids such an approach to deciding the constitutionality of gun control measures, Thomas wrote.
“This case illustrates why,” Thomas wrote. “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 Senate last week rejected Democratic amendments to a bill (HR 3762) and others on gun control. One amendment would expand the federal background check system to include firearms purchased at gun shows and over the Internet. Another Democratic amendment designed to block terrorists from buying guns failed to advance after senators rejected, 45-54, a motion to waive the budget act for that proposal.
Obama urged Congress to pass that measure on Sunday night.
The Senate votes came after a mass shooting Dec. 2 killed 14 people in San Bernardino, Calif.
Congress has rejected gun control legislation for decades. In 2013, the Senate voted against a bipartisan proposal to expand background checks for gun purchases in one of the most intense pushes in years.
States and municipalities have stepped in with gun control laws, sparking hundreds of state and federal lawsuits over the Second Amendment since the Supreme Court’s last decision. Part of the case the court chose not to hear Monday focused on whether the lower courts have created differing legal tests for judging the constitutionality of gun control laws.
The challengers in this case, pediatrician and one-time U.S. House candidate Arie Friedman and the Illinois State Rifle Association, argued that Highland Park’s law bans some of the most commonplace firearms and magazines in the nation. That includes “the immensely popular AR-15” that has been called the best-selling rifle type in the United States, and 47 percent of the total stock of pistol and rifle magazines.
The challengers argued in a brief that such a ban is unconstitutional under the Supreme Court’s 5-4 decision in District of Columbia v. Heller in 2008, which found an individual right to possess a firearm at home for self-defense and struck down a ban on possession of a handgun.
“There is thus simply no plausible dispute that the firearms and magazines banned by Highland Park are ‘typically possessed by law-abiding citizens for lawful purposes,’” the challengers’ attorneys wrote, quoting language from the Heller decision. “Under Heller, that alone is enough to make Highland Park’s bans categorically unconstitutional.”
The challengers say lower courts across the nation have upheld gun bans using a “chaotic flurry” of legal analysis that varies from appeals court to appeals court.
“They have upheld severe restrictions on the right to keep and bear arms that would be unthinkable in the context of any other constitutional right,” the challengers wrote in the brief. “And they have done so based on reasoning that is not reconcilable with this court’s teaching and, in some cases, does not even pretend to be.”
Attorneys for Highland Park, however, said that restrictions on assault weapons and large capacity magazines have repeatedly been held to be in harmony with the Supreme Court’s decisions in Heller and McDonald v. City of Chicago, a 5-4 decision in 2010 that struck down that city’s ban on handgun possession.
The decision of the Seventh Circuit to uphold Highland Park’s ban is consistent with rulings from other circuit courts, and that there is no confusion among courts on assault weapons and high-capacity magazines, the town’s lawyers said.
The Highland Park City Council adopted the ban in June 2013 after several mass shootings in the United States: a shooter at an Aurora, Col., movie theater killed 12 people and injured 58 others in 2012; a shooter at a Newtown, Conn., elementary school in 2012 killed 28 people, including 20 school children between the ages of 6 and 7; and a shooter at a Casas Adobes, Ariz., supermarket parking lot killed six people and injured 14 others, including then Rep. Gabrielle Giffords.
Highland Park joined states and municipalities with similar bans, including California, Connecticut, Hawaii, Maryland, Massachusetts, New Jersey, New York and Washington D.C., as well as New York City, San Francisco, and Cook County, Ill., the town’s lawyers said.
“In all, more than a quarter of the United States population lives in areas that have banned assault weapons,” Highland Park attorneys wrote in a brief urging the Supreme Court not to take the case.
The Highland Park law defines an “assault weapon” as a semi-automatic firearm with the capacity to accept more than 10 rounds of ammunition and at least one of these five features: a pistol grip without a shoulder stock; a protruding grip for the not trigger hand; a folding, telescoping or thumbhole stock; a barrel shroud; or a muzzle break or compensator.
The case is Friedman v. Highland Park, Docket No. 15-133.