According to FBI statistics, there were 11,961 murders committed in the U.S. in 2014. 8124 of the murders were committed using handguns. 262 people were killed with shotguns. 248 murders were committed with rifles, including “military style assault rifles” (AR-15s and AK-47s).
Fear of Mass Shooting Sparks Debate
Mass shootings have a salient impact on the American psyche. Criminologists James Alan Fox, an expert on mass shootings, has said that 100 people on average were killed each year in these kinds of shootings over the last three decades. But, it is not the number that produces the fear from the mass shootings. It’s the immediate, instantaneous impact of them, fed by a hyper-focused media, scraping to fill the non-stop, 24 hour news cycle.
Mother Jones reported in 2013 that more than half of these mass shootings involve an assault weapon and high capacity magazines.
Shootings Intensify Blame Game
The use of assault weapons in mass shooting does have a “terrorizing” effect on most Americans, who in turn routinely demand a ban on the sale of the weapons after they are used in a mass shooting. Opponents of bans now routinely chime in that tougher law enforcement and mental illness prohibitions are the answer.
Highland Park Ordinance Bans Assault Weapons and Large Capacity Magazines
Some communities have heeded the demands for bans. One such community is the City of Highland Park, Illinois (“Highland”). Highland Park passed a city ordinance that prohibits the possession of assault weapons and large-capacity magazines (more than ten rounds).
Under the ordinance, an assault weapon is any semi-automatic weapon that can accept a large-capacity magazine.
Arie Friedman is a resident of Highland who owned an assault rifle with several large-capacity magazines prior to the passage or the ordinance. He, along with several members of Illinois State Rifle Association who also live in Highland, sought to enjoin the enforcement of the gun ban ordinance in the federal district court.
The gun owners argued that the ban violated their Second Amendment rights as recognized in the 2008 decision by the U.S. Supreme Court in District of Columbia v. Heller. The gun owners argued the Second Amendment right to keep and bear arms is applicable to the states by virtue of the Fourteenth Amendment as recognized by the Supreme Court in its 2010 decision in McDonald v. City of Chicago.
The case ended up before the Seventh Circuit Court of Appeals.
Appeals Court Upholds Ban
In a highly controversial opinion issued on April 27, 2015, the appeals court upheld the Highland ordinance. The appeals court drew legal guidance from the Heller decision.
The Seventh Circuit said that while Heller upheld the Second Amendment right to keep and possess a handgun in the home for defense, the split three-judge panel said the decision does not mean an individual has a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
The appeals court noted that the Heller court cautioned that its ruling should not be interpreted to cast doubt on “longstanding prohibitions” against the possession of certain, including the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’
No Constitutional Right to Bear Military Grade Weapons
In effect, as the Seventh Circuit observed, that in the face of a state or city ban, Heller does not protect an individual’s right to keep and bear “military grade weapons,” such as “machine guns.”
These Highland plaintiffs’ had argued that since automatic rifles have been marketed for 100 years, there is no “historical tradition” prohibiting the possession of semi-automatic weapons and large-capacity magazines.
The appeals court rebuffed this position by pointing out that “states began to regulate private use of machine guns [in] 1927” and the federal government followed suit in 1934 with the National Firearms Act.
Second Amendment Does not Prevent Firearms Regulation
The basic legal premise for the Seventh Circuit’s Highland decision can best be summed up in the following paragraph by the court:
“Heller does not purport to define the full scope of the Second Amendment. The Court has not told us what other entitlements the Second Amendment creates or what kinds of gun regulations legislators may enact. Instead the Court has alerted other judges in Heller and again In McDonald, that the Second Amendment ‘does not imperil every law regulating firearms’ … Cautionary language about what has been left open should not be read as if it were part of the Constitution or answered all possible questions. It is enough to say … that at least some categorical limits on the kinds of weapons that can be possessed are proper, and that they need not mirror restrictions that were on the books in 1791.”
In a nutshell, the Seventh Circuit held that any firearm beyond a handgun in the home is subject to “control” by legislative regulation so long as the regulation has a “rational basis” that “serves some conceivable, valid function.”
Put simply, there is no constitutional prohibition against “gun control,” at least in the Seventh Circuit and three other federal circuits.
Legislation and Litigation Continue
In 2011, the D.C. Circuit in Heller v. District of Columbia upheld a law materially identical to the Highland Park ordinance; and this past March the Ninth Circuit Court of Appeals in Fyock v. Sunnyvale upheld a ban on magazines holding more than ten rounds. More recently, the Second Circuit Court of Appeals in a joint decision handed down this past October upheld comprehensive gun control legislation enacted in New York and Connecticut in the wake of the 2012 Newtown massacre.
These three decisions were given constitutional credence when the Supreme Court on December 7, 2015 refused to review the Seventh Circuit’s decision in Highland.
Supreme Court’s Silence Angers Gun Control Opponents
These recent actions by the Supreme Court raise both concerns and the ire of many gun owners because they come at a time when there is significant social and political clamor surrounding gun control in the wake of the San Bernardino terror mass shooting.
After the Highland decision, the Huffington Post pointed out that the Supreme Court has rejected more than 60 cases that sought to clarify the full impact of the Second Amendment right announced in Heller.
Justice Thomas Voices Concern over Perceived Safety
The Court’s decision not to entertain the Highland decision particularly stirred the ire of Justice Clarence Thomas. He was concerned that too much would be read into the Seventh Circuit’s reasoning that a “ban on semi-automatic guns and large-capacity magazines reduces the perceived risk from a massing shooting, and makes the public feel safer as a result …”
Justice Thomas bristled at this suggestion, writing: “If a broad ban on firearms can be upheld on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing.”
Justice Thomas and the other Supreme Court justices will soon have another opportunity to review a “gun control” decision. The Court will be asked to review the Second Circuit decision upholding the gun control legislation enacted in New York and Connecticut following the Newtown massacre.
SAFE ACT: New York’s Response to Sandy Hook Elementary Massacre
In its 57 page opinion, in N.Y. State Rifle and Pistol Ass’n, Inc., et al. c. Cuomo, the Second Circuit said prohibitions on large-capacity ammunition magazines and semi-automatic weapons to not violate the 2nd Amendment Rights of gun owners. The appeals court did uphold, however, a lower court’s ruling that overturned a provision that made it illegal to load more than seven rounds of ammunition into a magazine. Both sides have vowed to continue this fight.
Tom King, the president of the NRA chapter of the New York State Rifle and Pistol Association, told The Buffalo News that “the [Second Circuit] result is really pretty much what we thought was going to happen. The Second Circuit is not known for being in any way a pro-gun friendly court. We’ve been saying from day one this is going to be a Supreme Court case.”
The post-Heller attitude of the Supreme Court appears to be one of waiting for legislators to enact gun control measures and seeing how the federal circuits will handle the inevitable constitutional challenges.
U.S. Supreme Court Has another Chance to Clarify
The Second Circuit decision, however, clearly presents the court with an opportunity to decide just how much leeway legislators have in fashioning gun control measures.
Gun owners will keep a sharp eye on the court’s handling of this decision.