Ninety-four members of Congress are asking the Supreme Court to hear a challenge to a Massachusetts “assault weapons ban” enacted by Attorney General Maura Healey, who announced in 2016 that the ban, which was originally passed in 1998, had been wrongly interpreted for the past eighteen years, and was actually far broader and more all-encompassing than the way it had originally been enforced. Gun owners, firearms retailers, and Second Amendment groups cried foul and sued over Healey’s decision, which amounted to new law via a legal opinion rather than legislation.

The case, called Worman v. Healey, has made its way up to the Supreme Court, where it was first listed in conference for consideration in late September. A number of organizations, including the National African American Gun Association, the National Shooting Sports Foundation, and the National Rifle Association have filed amicus briefs urging the court to take the case, along with the ninety-four members of Congress, who argue that lower courts are not abiding by the Court’s opinions in the Heller and McDonald cases, and that “ensuring the lower courts apply the appropriate framework to analyze new restrictions and properly protect the fundamental right to keep and bear arms requires a clear command from this Court.”

The brief argues that not only are lower court judges using a lower standard of review in determining the constitutionality of gun laws, they’re cherry picking quotes from the Heller decision to try to justify their rulings.

The district court’s decision in this case is an example of that approach. In Heller, this Court observed that “dangerous and unusual weapons” that were not “in common use at the time” were not protected by the Second Amendment. Immediately following this statement was a reference to “M-16 rifles and the like” as examples that could be banned without offending the Second Amendment. The district court here latched onto this language and framed the question as whether “the banned assault weapons and large capacity magazines [are] ‘like’ ‘M-16 rifles.’” The court quickly concluded that the banned firearms were like M-16s and are “most useful in military service,” so they are “outside the scope of the Second Amendment.”

This conclusion, however, disregards critical distinctions between the M-16 and the banned firearms. Importantly, the M-16 used by the military is a machine gun. Every variant of the M-16 employed by our nation’s military is capable of fully automatic fire or can fire in three-round bursts with a single pull of the trigger. The rifles Massachusetts bans (like the AR-15) are purely semiautomatic, firing a single time with each pull of the trigger. The M-16 and AR-15 may be similar in appearance but the AR-15’s “scary” appearance is no justification for banning it. However it looks, the AR-15 is not a fully automatic machine gun. So, it is not a type of firearm this Court described as a “dangerous and unusual weapon[]” traditionally subject to being banned. This drive to conflate the AR-15 with the M-16 has led lower courts to uphold gun restrictions without actually applying the test that this Court adopted in Heller and analyzing whether the rifle at issue was “in common use at the time” for self-defense.

It’s a solid brief. It’s a shame (and somewhat concerning) that there were only 94 members of Congress to sign on to the amicus brief, but I appreciate every one of them who did. One lawmaker who signed the brief is Elise Stefanik, a representative from upstate New York who says a decision reversing Maura Healey’s gun ban could provide an opportunity to challenge the New York SAFE Act and its ban on new semi-automatic firearms deemed “assault weapons”.

Stefanik said she joined that she joined colleagues in submitting the brief “to ensure the Constitutional right for law-abiding citizens to keep and bear arms is protected.”

“Lower courts should not be setting new precedent in Second Amendment cases, but rather should follow the already established Supreme Court precedent of Heller vs. D.C.” Stefanik in a news release.
The Massachusetts case is one of several that are currently before the Supreme Court for consideration. The justices are also looking at a case challenging New Jersey’s concealed carry permitting process, a Maryland case dealing with the same issue, and several other cases dealing with the right to keep and bear arms. The outcome of all of those cases could depend on what the Court does in New York State Rifle & Pistol Association v. New York City, which goes before the Supreme Court for oral arguments on December 2nd. If the Supreme Court strikes down the New York City gun law and firmly establishes that gun control laws require the highest level of judicial review, and not some balancing test that allows for virtually every gun control law to be upheld, it’s possible that the Court could send many of these cases back down to the lower courts and tell the judges to try again. They could also choose to take up one or more of the cases dealing with the right to carry, which is what many Second Amendment supporters are hoping for.
For those reasons, it’s unlikely that the Supreme Court will make a decision any time soon as to whether or not it will take the Massachusetts gun ban case. I suspect the earliest we’d hear anything from the Court is early 2020, but we may see more amicus briefs arguing for the Court to accept the case in the meantime.