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Don’t Expect the Supreme Court to Overturn Assault Weapon Bans

Despite more than 60 opportunities, the Supreme Court has yet to accept any Second Amendment cases other than handgun bans.

October 21, 2015

Cross-posted on American Constitution Society blog

On December 14, 2012, it took Adam Lanza less than five minutes to fire 154 bullets and kill 20 first-graders and six faculty members at Sandy Hook Elementary School. His weapon of choice was his mother’s Bushmaster AR-15 — the civilian, semi-automatic version of the fully-automatic M-16 military rifle — which Lanza outfitted with magazines holding 30 rounds each. In the wake of the carnage, New York and Connecticut passed a series of gun-safety provisions, including bans on large-capacity magazines (LCMs) and assault weapons like the AR-15. Predictably, gun-rights advocates challenged the laws as violating the Second Amendment. On Monday, a three-judge panel of the Second Circuit unanimously upheld the bans in New York State Rifle and Pistol Association v. Cuomo (NYSRPA).

The New York and Connecticut laws were not the first legislative attempts to restrict assault weapons, and the Second Circuit’s opinion was not the first time such restrictions have been upheld in court. In 1994, President Bill Clinton signed a national assault weapon ban, which withstood challenges based on purported violations of the commerce and equal protection clauses. Unsurprisingly, the Second Amendment was not prominent in these lawsuits. At the time, the Second Amendment was understood by most courts to have an extremely limited scope. That changed in 2008, however, when the Supreme Court decided District of Columbia v. Heller and interpreted the Second Amendment to protect an individual right to possess a handgun in the home for self-defense. While Heller dealt with a restriction on handguns, it invited Second Amendment challenges to all firearm restrictions, including bans on assault weapons.

The federal assault weapon ban lapsed in 2004, which is why Lanza’s mother could legally buy the AR-15 used in Sandy Hook. Since then, the legality of assault weapons and LCMs has varied by state and locality, with elected officials in at least eight states and the District of Columbia passing variations of the federal ban. In the past several years, the D.C. Circuit and Seventh Circuit rejected Second Amendment challenges to two such bans. Notably, these opinions were drafted by conservative judges Douglas H. Ginsburg and Frank Easterbrook. District courts in both Maryland and Colorado have also upheld prohibitions on assault weapons and/or LCMs in cases now pending in the Fourth and Tenth Circuits.

The consistent outcomes should come as no surprise. Heller held that self-defense is “central” to the Second Amendment right and handguns are the “quintessential self-defense weapon[s].” The same cannot be said of AR-15s, which are much less common and are associated more with target shooting than self-defense. Moreover, a plethora of guns from all civilian firearm categories (handguns, rifles, etc.) remain for lawful purposes like self-defense after assault weapons are taken off the table, which courts view as minimizing any potential burden on the Second Amendment right. This view is consistent with the Supreme Court’s statement in Heller that “[l]ike most rights, the right secured by the Second Amendment is not unlimited,” and it is “not a right to keep and carry any weapon whatsoever.”

Because LCM and assault weapon bans do not “severely” burden the Second Amendment right (if they do at all), the Second Circuit, like most courts considering this issue, applied “intermediate scrutiny” in NYSRPA. In this analysis, the court asks whether the laws are “substantially related to the achievement of an important government interest.” The importance of the government interest in these cases, public safety, is undisputed. And, in light of the “unusual risks” of assault weapons and LCMs, it is not hard to find a substantial relationship between banning these devices and public safety.

An assault rifle equipped with an LCM can inflict quicker and more widespread damage than other guns, which is surely why the mass shooters in Columbine, Aurora and Sandy Hook chose them. Indeed, a review of mass shootings between January 2009 and July 2015 found that incidents where assault weapons or large capacity ammunition magazines were used resulted in 155 percent more people shot and 47 percent more people killed compared to other mass shootings. In light of that fact, the Second Circuit was right to emphasize that when assault rifles and LCMs are used in crime, they “tend to result in more numerous wounds, more serious wounds, and more victims” than other firearms.

Of course, the Supreme Court will have the last word, and it has yet to rule on the constitutionality of assault weapon and LCM bans in the post-Heller world. Some have speculated that a challenge to an assault weapon ban could present the next Second Amendment case for the high court, and the Court is already deliberating whether to accept the appeal from the Seventh Circuit’s case. But don’t hold your breath. Despite more than 60 opportunities, the Supreme Court has yet to accept any Second Amendment cases other than handgun bans. Unless and until the Supreme Court decides to reenter the Second Amendment fray and dispute the consistent decisions in these cases, the holdings in the Second and Seventh Circuits will remain secure.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

(Photo: Thinkstock)