SCOTUS Now Has Multiple 'Assault Weapons' Ban Cases to Choose From, But Will They Accept Any of Them?

AP Photo/Julie Jacobson, File

Last week the Second Amendment Foundation and the Firearms Policy Coalition filed a petition for certiorari with the Supreme Court in a case known as Bianchi v. Brown, which challenges Maryland's ban on so-called assault weapons. In their request, the 2A groups argued that the time its ripe for the Court to step in and address the issue after the Fourth Circuit Court of Appeals took the almost unprecedented step of taking the case en banc before a three-judge panel in the appellate court was able to issue its own decision on the constitutionality of the law; move likely made to head off a decision that would have been favorable to the gun owners challenging the prohibition. 

While that request is pending, two more cert petitions has landed on the doorstep of the Supreme Court building; one from the National Association of Gun Rights in Bevis v. Naperville along with a request from SAF, FPC, and the Illinois Rifle Association in Harrel v. Raoul, both of which challenge the state of Illinois' more recent "assault weapons" ban. In a filing with the Supreme Court on Monday, NAGR and attorney Barry Arrington argue that a Seventh Circuit panel's declaration that AR-15s and other semi-automatic firearms aren't protected by the Second Amendment deserves a rebuke from the High Court. 

Bruen called on the Nation’s legislatures to engage in a sober reassessment of their power to impose burdens on the right to keep and bear arms. The Illinois legislature ignored that call, and instead of tapping on the regulatory brakes it stomped on the gas and passed a sweeping arms ban that included a ban on the most popular rifle in America. Illinois’ reaction to Bruen is perhaps not surprising. After all, it is natural for the political branches to chafe at constitutional constraints and to test them. What is surprising, however, is that after Bruen, the lower courts have upheld this and similar firearms bans without exception. This is surprising because Bruen emphatically called on the lower courts to stop their decade long practice of giving undue deference to legislative burdens on Second Amendment rights. But in the teeth of that guidance, at least as far as firearm bans are concerned, it has been business as usual. 

Judicial resistance to Bruen reached its apex just last week when the Supreme Court of Hawaii declared open rebellion against the authority of this Court in State v. Wilson. In that case, the court upheld a discretionary permitting statute that is flagrantly unconstitutional under Bruen. The court’s opinion is notable for its open defiance of this Court. Some excerpts:

• “Bruen snubs federalism principles.”

• “Bruen, McDonald, Heller, and other cases show how the Court handpicks history to make its own rules.”

• “As the world turns, it makes no sense for contemporary society to pledge allegiance to the founding era’s culture, realities, laws, and understanding of the Constitution. The thing about the old days, they the old days. 

• “The spirit of Aloha clashes with a federally mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities.” 

As Arrington argues, the Seventh Circuit's decision in Bevis v. Naperville and the associated challenges to Illinois' gun ban is just as egregious as the opinion handed down by Hawaii's Supreme Court. The Seventh Circuit panel upheld one district court decision not to grant an injunction against the Protect Illinois Communities Act while vacating a separate decision that did halt enforcement of the law, ruling that the guns subject to the state's ban aren't covered by the Second Amendment because they're “particularly dangerous"; a designation found nowhere in the Court's previous decisions in Heller, McDonald, Caetano, and Bruen. The proper test, according to the Court, is whether or not a particular arm is "dangerous and unusual" in nature, and using that definition the court has not only rejected D.C.'s ban on handguns but a Massachusetts law forbidding the possession of stun guns. 

Given that electronic weapons are far less common than the semi-automatic rifles, shotguns, and pistols defined under Illinois law as "assault weapons", it stands to reason that these bans would fail to pass muster with the Court, but as the petitioners in Harrel v. Raoul argue, until the justices weigh in directly we're going to see decisions to the contrary from activist courts and anti-gun judges.

In reversing an injunction against the Illinois ban, however, the Seventh Circuit has complicated matters needlessly by applying the wrong test and calling for the development of irrelevant information. Rather than acknowledging that the Second Amendment protects the right of law-abiding citizens to possess commonly used arms, the Seventh Circuit instead concluded that “the Arms protected by the Second Amendment do not include weapons that may be reserved for military use.” And compounding this initial error, the Seventh Circuit concluded that the civilian, semiautomatic arms banned by Illinois are “indistinguishable from” machineguns used by the military, even though semiautomatic firearms, unlike machineguns, “traditionally have been widely accepted as lawful possessions, and all semiauatomatic firearms are, by definition, distinguishable from automatic machineguns. The court left open the possibility that evidence such as “[b]etter data on firing rates might change the analysis. The parties accordingly are preparing for fact-finding proceedings in the district court similar to what the United States proposed and this Court rejected in Heller, over matters such as the difference in operation of semiautomatic firearms and machineguns. 

None of this is necessary, and this Court should grant certiorari now to cure the irreparable harm that is being inflicted on Petitioners through the violation of their fundamental rights, spare the parties and the judicial system of the needless time and expense of building a record on irrelevant matters,and once again confirm that the common use test established by Heller and reaffirmed in Bruen governs the resolution of arms ban cases. Unfortunately, it has become apparent that it likely will take this Court’s review for the clear teaching of Heller to take hold in the lower courts, and this case presents a perfect opportunity for the Court to settle the matter once and for all.

Unfortunately, that reasoning has not proved persuasive enough to get four justices to grant relief in prior requests stemming from the Illinois lawsuits. In fact, it was just last December that Supreme Court Justice Amy Coney Barrett denied a request from NAGR to grant a temporary injunction against the Seventh Circuit's decision while it finalized the formal appeal filed today. Since then we've seen further abuses of the Bruen decision in the courts, including the Hawaii decision referenced above, but I don't know that enough has changed in the Illinois legislation to convince four of the nine justices that it's time for them to grant cert. 

I'm slightly more optimistic about the request by SAF and FPC in Bianchi, for a couple of reasons. First, Bianchi was one of four lawsuits that SCOTUS granted, vacated, and remanded back to lower courts immediately after Bruen, so they've already signaled an interest in that case. Secondly, as the cert request argues, while the Seventh Circuit's jurisprudence clearly contradicts the "text, history, and tradition" test spelled out in Bruen, the Fourth Circuit's decision to take the case en banc despite the fact that neither party had requested that action is "the most brazen" act of judicial activism deployed in defense of a gun ban that we've seen in the past two years. 

While granting certiorari before judgment is not standard operating procedure, the situation facing the Court is atypical. A fundamental right is at stake, the proper outcome is clear, and the behavior of the lower courts indicates that this Court’s intervention likely is necessary for that fundamental right to be vindicated.This Court should grant review and hold that Maryland’s semiautomatic rifle ban is unconstitutional.

I'd be happy if the Supreme Court granted cert to any of the cases now pending before it, though as the FPC/SAF brief notes, it would be atypical of the Court to accept either case before final judgment is rendered by the respective appellate courts. Given the highly unusual moves by the Fourth and Seventh Circuits, I'd say early intervention is warranted, especially given the stakes for millions of lawful gun owners in the states where "assault weapons" bans are in place, but we'll have to wait a little longer to see if these arguments are persuasive enough to get the Court to step in and stop these abuses from continuing.