Constitution Check: If a particular gun is widely popular, does that put it under the Second Amendment?

Lyle Denniston, the National Constitutional Center’s constitutional literacy adviser, looks at an appeal at the Supreme Court about a local Illinois ordinance banning popular semi-automatic weapons.

THE STATEMENT AT ISSUE:

“Highland Park’s ban includes some of the most popular firearms in the Nation.   Between 1990 and 2015, over 5 million AR-platform firearms were manufactured for the commercial firearms market – and another 3.4 million AR- and AK- type firearms (both explicitly banned by Highland Park) were imported for commercial sale.  In the five years between 2008 and 2012 alone, 3.46 million AR-type firearms were manufactured for domestic sale; that is over 11 percent of all firearms produced for the domestic market….The semi-automatic firearms the city has banned are legal in the vast majority of the country….There is simply no plausible dispute that the firearms and magazines banned by Highland Park are ‘typically possessed by law-abiding citizens for law-abiding purposes..’  Under [the Supreme Court’s decision in 2008 on the

Second Amendment, that alone is enough to make Highland Park’s bans categorically unconstitutional.

 – Excerpt from an appeal filed in the Supreme Court by challengers to an ordinance passed in 2013 by the local government in Highland Park, Ill.  The appeal relies upon the Supreme Court’s 2008 decision in District of Columbia v. Heller – the court’s decision expanding rights under the Second Amendment to individual gun owners.  The Justices are expected to act soon on this new appeal.

WE CHECKED THE CONSTITUTION, AND…

When the Supreme Court recognizes a new constitutional right, the dimensions of that right typically are tested almost immediately.  When the right is as popular, among many Americans, as was its decision seven years ago that declared for the first time that the Second Amendment provides protection for private possession of guns, there is a rush to see just how far that right reaches.

Typically, the Supreme Court will let the question of the reach of a new right be explored first in lower-court cases, and the Justices hold back until they see a need to step in to provide some guidance or clarification.  The new Second Amendment right, though, has waited a considerable time, by comparison, for the Justices to say something more about it.   Aside from a decision in 2010 expanding the right to a gun so that it applied nationwide, but without further detail about the nature of the right, the Supreme Court has not reopened the issue, although it has had a lengthening list of chances to do so.   Perhaps the biggest unanswered question, so far, is whether the right to have a gun extends beyond the home – a question raised in about a dozen unsuccessful appeals to the Supreme Court.

But, as local and state governments across the nation pass new gun control laws, other issues are springing up.  And that has led to lawsuits asking the lower courts to decide what the Supreme Court meant in 2008 when it said what the Second Amendment does not protect.  Here is the court’s comment on the point: “The Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.”   It gave one illustration: a short-barreled shotgun.

Does that mean, then, that if a particular type of weapon is very popular, and is owned by many Americans who intend to use it lawfully, the right to own that gun gets the full protection of the Constitution?

That is exactly the question that a gun-owner in Highland Park, Ill., joined by an Illinois gun-rights advocacy group, is trying to get the Supreme Court to answer.    Highland Park, not far from Chicago, decided in 2013 that guns with repeating shooting capacity – city officials called them “assault weapons” – were too dangerous to be allowed within that community.   The local government passed a flat ban on semi-automatic weapons (those that can fire repeatedly, but with only one shot for each trigger pull) and magazines containing more than ten rounds of ammunition.

In upholding that law, the U.S. Court of Appeals for the Seventh Circuit said that it was too simplistic to judge what types of guns the Supreme Court had in mind by measuring their popularity.  It noted that Thompson submachine guns (“Tommy guns”) were popular with the Chicago mobsters in the Prohibition era, but that would not qualify them for Second Amendment protection.

The kinds of weapons banned by the Highland Park ordinance, the appeals court said, “can fire more shots, faster, and thus can be more dangerous in the aggregate.  Why else are they the weapons of choice in mass shootings?  A ban on assault weapons and large-capacity magazines might not prevent shootings in Highland Park (where they are already rare), but it may reduce the carnage if a mass shooting occurs.”

The repeated occurrence of mass shootings, like the most recent one last week on a college campus in Oregon, have made the argument for full access to repeating firearms a more difficult one to make, at least in the political realm, and that is there where the prospect of regulating those weapons will arise, at least from time to time.  Gun-owners and their organized supporters, when they fail to stop the passage of such controls, are sure to continue to go to the courts with Second Amendment arguments.

Whether or not courts take notice of mass shootings across America, and whether or not, if they did, that would influence their rulings on the scope of the Second Amendment, lower courts have not been told by the Supreme Court – at least not yet – to apply more rigorous limits to gun regulation.

The record so far, since the Justices last spoke on the question, suggests that, more often than not, lower courts are developing a narrower interpretation of the Second Amendment, and that the argument based on the popularity of a given type of weapon is not necessarily going to carry the day.

No one outside the Supreme Court can say, with any confidence, why the Justices have chosen, time after time in the past few years, to leave the fate of “the right to keep and bear arms” to the legislatures and to the lower courts.  It may be that, as the court takes a look at each new appeal, it finds that there is not a realistic possibility that the court could assemble a majority in favor of some definitive new declaration on gun rights.   And no one outside the court can predict just what kind of new argument the gun-rights community might develop that would get the Justices’ attention.