Court Declines to Hear, Strike Assault Weapon Ban

Steven D. Schwinn, John Marshall Law School

The Supreme Court today declined to hear an appeal upholding an assault-weapon ban against a Second Amendment challenge. The action, a denial of cert., means that Highland Park's ban on assault weapons stays on the books, even though the decision says nothing on the merits.

The case, Friedman v. City of Highland Park, involved a Second Amendment challenge to Highland Park's ban on semi-automatic firearms. The Seventh Circuit upheld the ban. That court, frustrated with the lack of guidance on the question, devised and applied this test:

[W]hether a regulation bans weapons that were common at the time of ratification or those that have "some reasonable relationship to the preservation or efficiency of a well regulated militia," and whether law-abiding citizens retain adequate means of self-defense.

The Seventh Circuit said that the ban didn't run afoul of this test, because assault weapons weren't common at the time of ratification; they had no reasonable relationship to the preservation or efficiency of a well regulated militia; and law-abiding citizens had other options for self-defense (handguns and long-guns). The court went on to say that regulation of assault weapons really ought to go "through the political process and scholarly debate" and not by judges "parsing ambiguous passages in the Supreme Court's opinions."

While the Supreme Court didn't see fit to intervene and reconsider this ruling, the Seventh Circuit's approach didn't sit well at all with Justices Thomas and Scalia. They dissented from the denial of cert., arguing that the Seventh Circuit's test "eviscerate[d] many of the protections recognized in Heller and McDonald." Justice Thomas dissected the Seventh Circuit's test and wrote that each part of it--commonality at the time of ratification, preservation of a militia, and self-defense alternatives--undermined Heller and McDonald. The upshot: "I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right."

Again, the Court's denial of cert. says nothing on the merits. But it leaves Highland Park's regulation and the Seventh Circuit's opinion both on the books. With just two justices dissenting, it looks like either (1) the Court's not yet ready to revisit the Second Amendment, or (2) it's content with the Seventh Circuit's approach.