Gun rights advocates are urging the Supreme Court to strike down a local Chicago ordinance prohibiting semiautomatic “assault weapons” that can carry more than 10 rounds.
The justices on Friday were to consider the appeal in Friedman vs. City of Highland Park. If they refuse to hear the appeal, the announcement could come as early as Tuesday morning. Such a decision would signal that cities have the authority to restrict high-powered weapons.
But if the justices vote to take up the case, it would put in doubt the constitutionality of laws in other places, including California, that prohibit semiautomatic weapons.
“These are some of the most popular firearms commonly used by law-abiding citizens in America,” said David H. Thompson, a lawyer for the Illinois gun owners who are challenging the assault weapons ban adopted in the North Shore Chicago suburb of Highland Park.
They lost before a federal judge and in a decision from the 7th Circuit Court of Appeals in Chicago. Now they are asking the high court to hear their appeal.
At issue is the scope of the 2nd Amendment and its right to keep and bear arms.
While the Supreme Court has struck down ordinances in Washington, D.C., and Chicago which prohibited residents from keeping a handgun at home for self-defense, it has not said whether the 2nd Amendment protects the right to carry a gun in public or to own more powerful and sophisticated weapons.
In the meantime, the increase in mass shootings in recent years has revived interest in laws that forbid the sale or possession of rifles and handguns that are capable of rapid fire. In defense of their ordinance, officials in Highland Park cited the mass shootings at a movie theater in Aurora, Colorado and at the Sandy Hook Elementary School in Connecticut.
Seven states--California, Connecticut, New York, Maryland, Massachusetts, New Jersey and Hawaii--have similar bans, as does Chicago and several surrounding cities.
In upholding the Highland Park ordinance, the 7th Circuit cited the Supreme Court’s statement that “dangerous and unusual weapons” may be restricted.
“Assault weapons with large-capacity magazines can fire more shots, faster, and thus can be more dangerous in aggregate,” said Judge Frank Easterbrook in April for a 2-1 majority. “Why else are they the weapons of choice in mass shootings? A ban on assault weapons and large-capacity magazines might not prevent shootings...but it may reduce the carnage if a mass shooting occurs.”
In dissent, Judge Daniel Manion said some homeowners want to keep a semi-automatic weapon at home for self-defense. “Ultimately, it is up to the lawful gun owner and not the government to decide these matters,” he wrote.
The National Rifle Assn. and the chief attorneys for 24 states joined Dr. Arie Friedman of Highland Park and the Illinois State Rifle Assn. in urging the justices to hear the case and to strike down the bans on semi-automatic weapons. They say these weapons are hardly unusual. They 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.”
In response, city officials pointed the potential danger at shopping malls or music festivals if a shooter appears with a rapid-fire weapon. And who really needs a rapid-fire weapon with a large capacity magazine for self-defense at home, they ask.
For its part, the Supreme Court has steadily refused, without comment, to hear appeals from gun-rights advocates in recent years. It has turned away several challenges to state and local measures that strictly limit who may obtain a permit to carry a concealed weapon in public. In June, over dissents by Justices Clarence Thomas and Antonin Scalia, the court refused to hear the NRA’s appeal of a San Francisco ordinance which said handguns kept at home must be stored or disabled with a trigger lock.
There are at least two possible explanations for the court’s actions. One is the court’s traditional caution. Unless the lower courts are split on a significant issue, the justices usually refuse to intervene, and in this instance, local and state governments have been winning steadily in the lower courts.
The other possibility is that one or more of the five conservatives who voted to uphold a 2nd Amendment right to have a gun at home are not willing to go further to strike down other gun laws.
“It may be they are not certain how Justice (Anthony) Kennedy will vote, so I imagine they will not be eager to take up this case,” said UCLA Law Professor Adam Winkler.
On Twitter: @DavidGSavage