New York Times
Sign of Tacit Approval as Justices Turn Away Challenge to a Local Effort to Regulate Guns
December 8, 2015
by Adam Liptak
WASHINGTON — The Supreme Court on Monday refused to hear a Second Amendment challenge to a Chicago suburb’s ordinance that banned semiautomatic assault weapons and large-capacity magazines.The decision not to hear the case has no precedential force, but was nonetheless part of a series of signals from the Supreme Court giving at least tacit approval to even quite strict gun control laws in states and localities that choose to enact them.
“The justices don’t reveal their reasons for denying review, but one thing is clear,” said Adam Winkler, a law professor at the University of California, Los Angeles. “The justices certainly aren’t eager to take up a Second Amendment case these days.”
“One has to wonder,” he said, “if the Supreme Court is having second thoughts about the Second Amendment.”
The court will sooner or later return to the subject of the scope of the Second Amendment right first recognized in 2008 in District of Columbia v. Heller, which struck down parts of an exceptionally strict local law that barred keeping guns in the home for self-defense. But the justices do not seem eager to do so even as the nation is in the midst of a sharp debate over gun control in the wake of shooting rampages in San Bernardino, Calif., and across the nation.
In dissent on Monday, Justice Clarence Thomas, joined by Justice Antonin Scalia, accused the court of abdicating its responsibility to enforce the constitutional right to keep and bear arms. (Justice Scalia wrote the majority opinion in the Heller case, which was decided by a 5 to 4 vote.)
“Roughly five million Americans own AR-style semiautomatic rifles,” Justice Thomas wrote, referring, he said, to “modern sporting rifles.”
“The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting,” Justice 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.”
Chuck Michel, president of the California Rifle and Pistol Association, said the dissent made powerful points. “It is only a matter of time,” he said, “before the Supreme Court takes a case, sets things straight, and properly subjects this and similar unconstitutional laws to renewed challenge.”
Gun control advocates heard a different message. “The American people have had enough of gun violence and, with the exception of Justices Thomas and Scalia, in this case, the Supreme Court sided with them,” said Dan Gross, president of the Brady Campaign to Prevent Gun Violence.
Monday’s case, Friedman v. City of Highland Park, No. 15-133, concerned an ordinance in Highland Park, Ill. It was, enacted in 2013.
The ordinance banned some weapons by name, including AR-15s and AK-47s. More generally, it prohibited possession of what it called assault weapons, defining them as semiautomatic guns that can accept large-capacity magazines and have features like a grip for the nontrigger hand. Large-capacity magazines, the ordinance said, are those that can accept more than 10 rounds. A federal assault weapons ban, including a prohibition on high-capacity magazines, expired in 2004.
In the Heller case in 2008, the Supreme Court found for the first time that the Second Amendment protects an individual’s right to bear arms. In 2010, the court extended the principle to state and local governments.
The Highland Park ordinance was drafted with those cases in mind, said Steven M. Elrod, a lawyer for the city and the author of the law. “The rights secured by the Second Amendment are not unlimited,” he said.
Since 2010, the Supreme Court has turned away appeals in any number of Second Amendment challenges to gun control laws. Monday’s move was telling, Professor Winkler said.
“The court’s action will encourage gun control advocates to push for bans on assault weapons,” he said. “This is one of the items at the top of the gun control agenda. Now advocates have less to fear from the courts on this issue.”
The ordinance was challenged by the Illinois State Rifle Association and Dr. Arie S. Friedman, who at his home had kept guns and magazines for self-defense that were banned by the ordinance. The term “assault weapons,”they told the justices, “is an imaginary and pejorative category.”
The Illinois rifle group and Dr. Friedman urged the Supreme Court to address what they called “the lower courts’ massive resistance to Heller and their refusal to treat Second Amendment rights as deserving respect equal to other constitutional rights.”
A supporting brief filed by 24 states said the ordinance “bans many commonly used firearms and the standard capacity magazines for many popular firearms.”
In April, a divided three-judge panel of the United States Court of Appeals for the Seventh Circuit, in Chicago, upheld the Highland Park ordinance.
On the one hand, Judge Frank H. Easterbrook wrote for the majority, “assault weapons can be beneficial for self-defense because they are lighter than many rifles and less dangerous per shot than large-caliber pistols or revolvers.”
He added that “householders too frightened or infirm to aim carefully may be able to wield them more effectively than the pistols James Bond preferred.”
“But assault weapons with large-capacity magazines can fire more shots, faster, and thus can be more dangerous in aggregate,” he continued. “Why else are they the weapons of choice in mass shootings?”
Justice Thomas rejected that reasoning. In general, he said, the courts have been treating the Second Amendment as a second-class citizen notwithstanding the pathbreaking decisions in 2008 and 2010.
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A version of this article appears in print on December 8, 2015, on page A19 of the New York edition with the headline: Sign of Tacit Approval as Justices Turn Away Challenge to a Local Effort to Regulate Guns