The U.S. Supreme Court denied certiorari this morning to review the Second Circuit’s prior upholding of New York and Connecticut’s draconian gun laws banning “assault weapons” and “large-capacity” magazines. The bans will thus remain in place.
The laws in New York and Connecticut, among the strictest in the nation, were enacted after a gunman with a semiautomatic rifle killed 20 young children and six educators in 2012 at Sandy Hook Elementary School in Newtown, Connecticut.
The challengers had asserted that the laws violated the U.S. Constitution’s protection of the right to bear arms. The court denied the appeal with no comment or recorded vote.
The gunman in the June 12 attack at an Orlando gay night club that killed 49 people, the deadliest mass shooting in modern U.S. history, used a semiautomatic rifle that would have been banned in New York and Connecticut.
As Sean Davis of The Federalist pointedly argued last week, there is no such thing as an “assault weapon,” and banning such a technically undefinable and cosmetically amorphous class of guns that Leftist legislators nonetheless deem to look scary amounts to a “stupid idea pushed by stupid people.” Indeed, FBI statistics show that, in the U.S., knives are six times more lethal, and human fists three times as lethal, as are rifles. But the Left knows it cannot go after handguns, so it scapegoats away.
The Supreme Court similarly denied certiorari review in December in the case of Friedman v. City of Highland Park, which was a case from the 7th Circuit that upheld a virtually identical municipal ordinance enacted by the City of Highland Park, Illinois. Judge Daniel Manion masterfully dissented in that 7th Circuit case, explaining why such a categorical ban flies in the face of the very pronounced logic of the Supreme Court’s landmark Second Amendment decisions of D.C. v. Heller (2008) and McDonald v. City of Chicago (2010):
The ‘common use’ test is the offspring of [U.S. v. Miller (1939)] and asks whether a particular weapon is commonly used by law-abiding citizens for lawful purposes. Heller jettisoned Miller‘s requirement of a nexus between the weapon and military equipment, but otherwise adopted the test with a focus on whether the weapon in question has obtained common use by law abiding citizens…
Here, the evidentiary record is unequivocal: a statistically significant amount of gun owners such as Friedman use semiautomatic weapons and high-capacity magazines for lawful purposes. This evidence is sufficient to demonstrate that these weapons are commonly used and are not unusual. In other words, they are covered by the Second Amendment. Whether or how people might use these weapons for illegal purposes provides a basis for a state to regulate them, but it has no bearing on whether the Second Amendment covers them…
Neither Heller nor McDonald purported to resolve every matter involving the regulation of weapons; but they are clear about one thing: the right to keep arms in the home for self-defense is central to the Second Amendment and is not conditioned on any association with a militia. Instead of following this clear principle, the court engages in a gerrymandered reading of those cases to hold directly contrary to their precedents.
Stalwart originalist Justice Clarence Thomas dissented from the Supreme Court’s denial of certiorari review in Friedman, last December, and largely accepted Judge Manion’s legal reasoning:
The Seventh Circuit…asked whether the banned firearms relate ‘to the preservation or efficiency of a well regulated militia.’ The court concluded that state and local ordinances never run afoul of that objective, since ‘states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade fire- arms.’ But that ignores Heller’s fundamental premise: The right to keep and bear arms is an independent, individual right. Its scope is defined not by what the militia needs, but by what private citizens commonly possess…
Lastly, the Seventh Circuit considered ‘whether law-abiding citizens retain adequate means of self-defense,” and reasoned that the City’s ban was permissible because ‘[i]f criminals can find substitutes for banned assault weapons, then so can law-abiding homeowners.’ [The court] thought that ‘Heller did not foreclose the possibility that allowing the use of most long guns plus pistols and revolvers…gives house-holders adequate means of defense.’
That analysis misreads Heller. The question under Heller is not whether citizens have adequate alternatives available for self-defense. Rather, Heller asks whether the law bans types of firearms commonly used for a lawful purpose—regardless of whether alternatives exist. And Heller draws a distinction between such firearms and weapons specially adapted to unlawful uses and not in common use, such as sawed-off shotguns. The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes. Roughly five million Americans own AR-style semiautomatic rifles. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.
(internal citations omitted; emphasis added)
The Manion/Thomas legal analysis is, of course, correct, and today is an unfortunate result for New York- and Connectut-based gun rights advocates insofar as the infringement of their Second Amendment rights has been blessed by the highest court in the land.
At the same time, however, it is not immediately obvious that conservatives actually should have preferred the Supreme Court weigh in and definitively rule on the constitutional merits of categorical “assault weapon” bans. The tragic death of Justice Antonin Scalia—who authored the Heller decision in one of his all-time vintage opinions—has left conservatives in a deeply unfortunate situation as it pertains to the Court. Donald Trump’s SCOTUS judges list may be good, but the orange-hued clown is so catastrophically uninformed and patently unserious so as to make his list “objectively irrelevant.” At the same time, the narcissistic vulgarian’s national polling is increasingly dire, anyway.
As painful as it may thus sound, it is perhaps better for Second Amendment proponents to eschew—at least for the time being—decisive wins at the high Court, and focus instead on pushing sound incremental rights-advancing legislation at the state (or even local) level. Certainly, this has largely been the committed strategy of pro-life advocates since the court’s tragic 1992 ruling in Planned Parenthood v. Casey. With Justice Scalia still on the Court in December, the justices’ refusal to grant certiorari review in Friedman was deeply disappointing. Today, with Scalia presently arguing about the Constitution with James Madison in another realm, such a shirking of judicial duty—on the merits—nonetheless is more pragmatically justified, from a conservative perspective.
One more Supreme Court note. Yesterday, Paul Bedard sent shockwaves through the conservative world by running a short article at the Washington Examiner claiming that Justice Thomas was mulling retirement soon. Ginni Thomas, Justice Thomas’s wife and a notable conservative activist in her own right, quickly took to Facebook to definitively quash the rumors as “bogus,” and Bedard has subsequently edited his original article. I also frantically texted the initial, unedited article to a friend of mine who is in semi-regular contact with Justice Thomas, and he similarly assured me of the article’s complete baselessness. It looks like Justice Thomas will be with us for awhile, and as it pertains to Bedard—well, some takes are best left unreported.