Is there a constitutional right to have a rapidly firing assault gun?

“Authorities have said the weapon used in the deadly shooting at an Orlando, Florida, nightclub was an AR-15.  Dozens of companies in the U.S. produce versions of the AR, which is the most popular weapon of its kind in the United States.  There are as many as 9 million AR-style weapons in the U.S.  Prices run from $550 up, and the going price is usually less than $1,000 for a new gun.”

– Excerpt from an online story on June 13 by Raycom News Network.

Eight years after the Supreme Court recognized an individual’s right under the Second Amendment to have a gun for personal self-defense, the deepest division over what that means now focuses on the issue of access to assault weapons – especially, the very popular AR-15, a rapidly firing civilian version of the military’s old standby, the M-16 rifle.

A handful of states or cities, citing mass killings in recent years by individuals armed with an assault weapon, have passed laws to flatly ban the possession of such guns.  By coincidence, in the wake of the killings early Sunday at a gay nightclub in Orlando by a gunman using an AR-15, the constitutionality of such bans is at issue in a case now awaiting the Supreme Court’s attention. The scope of the Second Amendment as it applies to such guns is definitely not settled.

Following the shooting of 20 young students and six educators in the Connecticut city of Newtown four years ago, the state legislature in 2015 added new provisions to existing gun control laws, and in the process broadened its ban on semi-automatic guns, which it labeled “assault weapons.”  A total of seven states and a few cities now have similar laws on the books, and so far none of those has been struck down in a final ruling, although a ban enacted in Maryland has been under a constitutional cloud because of a federal appeals court’s initial reaction to it.

The Connecticut case, Shew v. Malloy, reached the Supreme Court in February in an appeal by four residents and two organizations, after the U.S. Court of Appeals for the Second Circuit upheld the ban, finding it did not violate the Second Amendment.  The appeal in that case is scheduled to be considered by the Justices at their private Conference on Thursday, less than a week after the nightclub massacre in Orlando.  The Justices surely are aware of the Orlando incident, but will attempt to put that out of their minds as they examine the issue.

The state of Maryland also passed such a ban following the Newtown shooting, and that statute has been under review by the U.S. Court of Appeals for the Fourth Circuit.  The Maryland law flatly outlaws owning an assault-weapon and bullet magazines holding more than 10 rounds.

Last month, 14 judges of the Fourth Circuit Court sat together in Richmond, Virginia to ponder the constitutionality of Maryland’s Firearm Safety Act. State officials in Maryland had persuaded the full bench of that appeals court to take up the issue after a three-judge panel had ruled. The panel declared that the ban had to be judged by the toughest constitutional test there is for a government action or law – “strict scrutiny.”  A law measured by such a standard will seldom be upheld, and gun rights advocates have been pressing the courts to use that test.

One of the probable reasons that the full bench was persuaded to review the case (setting aside the panel’s ruling) is that four other federal appeals courts have ruled differently. Those other courts have used a lower constitutional standard and upheld bans on assault-weapons and, in some of the cases, high-capacity magazines, too.

One of those rulings was by the Second Circuit Court in the Connecticut case now on the Supreme Court’s docket.  In another of those decisions, the U.S. Court of Appeals for the Seventh Circuit upheld a ban imposed by a local Illinois government in Highland Park, Illinois.

A local resident who owned that type of weapon and magazine took his Second Amendment challenge to the Supreme Court, but the Justices refused last December to hear his case.   That left the ordinance intact.

Justice Clarence Thomas (in a dissenting opinion joined by Justice Antonin Scalia, who has since died) argued then that the Seventh Circuit Court had turned the Second Amendment right to have a gun into a “second-class right.”

(In February, when the Supreme Court held a hearing on a federal law that takes away the right to a gun after conviction for a misdemeanor crime of domestic violence, Justice Thomas – for the first time in 10 years – broke his customary silence on the bench to ask a government lawyer whether any other constitutional right can be taken away after being found guilty of a minor crime.  That has been taken by some observers as an indication that Thomas may say something more broadly about the scope of the Second Amendment when the court decides that case — Voisine v. United States — between now and the end of June.)

Because the Supreme Court did not explain its reasoning in December for turning aside the Highland Park case, its denial did not create any new precedent on assault-weapon laws that would apply outside of the area of the Seventh Circuit Court.

That denial, though, has only enhanced the visibility of the new cases reaching, or on their way to, the Supreme Court.

As assault weapons cases are examined in lower courts, here are the key issues that have been coming up regularly (none of which has yet been answered by the Supreme Court):

First, do assault-weapons and high-volume magazines get any protection under the Second Amendment, or are they outside of it in the same way that a military machine gun would be?

Second, is such a flat ban unconstitutional when the weapon involved is highly popular, and thus is recognized as one that is in common use – one of the factors that the Supreme Court has said should be considered?

Third, is such a flat ban always unconstitutional because it allows no exceptions, and thus puts such a commonly used weapon completely out of the hands of even trustworthy, law-abiding citizens?

Fourth, is the fact that the weapon is very much like the one that the military has traditionally used on the battlefield (the M-16) an indication that it should not be allowed for the general public – that is, is it too dangerous?

Fifth, if the Second Amendment does provide some protection for private possession of assault weapons and high-capacity magazines, how rigorous should the constitutional test be?  Should it be the tough test of “strict scrutiny,” or something less demanding?

It is apparent that the issue is one that will continue to arise in lower courts, although there is no certainty that the Justices will step in to provide answers to those questions.  In the eight years since the Supreme Court opened this constitutional discourse with its initial ruling in District of Columbia v. Heller, the Justices have issued only one ruling on the type of weapons that might qualify for protection under the Second Amendment.  In a Massachusetts case, the court in March told a state court to reconsider a ruling that had upheld a ban on stun guns – weapons that send an electronic pulse that is capable of disabling or injuring a person.

At some point, the Justices may find a need to speak more expansively on the issue.  However, with only eight Justices currently on the bench, it is an open question whether the court will be willing to step in, when there could be the prospect of a 4-to-4 split, which would settle nothing.

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser.

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