Constitution Daily

Smart conversation from the National Constitution Center

Constitution Check: Can guns used in mass shootings be banned?

December 8, 2015 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, analyzes the Supreme Court’s refusal to take a case about banning assault weapons.




640px-Inside_the_United_States_Supreme_Court“Assault weapons with large-capacity magazines can fire more shots, faster, and thus can be more dangerous in aggregate. Why else are they the weapons of choice in many 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….If it has no other effect, Highland Park’s ordinance may increase the public’s sense of safety.  Mass shootings are rare, but they are highly salient, and people tend to over-estimate the likelihood of salient events.”


– Excerpt from the majority opinion of the U.S. Court of Appeals for the Seventh Circuit, upholding a ban on assault weapons and larger ammunition magazines in the city of Highland, Park, Ill.  On Monday, the Supreme Court refused to review that appeals court decision, thus leaving the city’s weapons ban in place. 




For the past seven years, it has been a settled constitutional issue that the Second Amendment protects an individual’s right to have a gun for use in self-defense.  But that Supreme Court ruling, in the case of District of Columbia v. Heller, only made a start on defining the scope of that right.  The only other decision that added any clarity to that right was a decision in 2010, extending nationwide that personal right (McDonald v. Chicago).


Gun rights advocates have been attempting repeatedly over the past five years to get the Supreme Court to return to the issue, complaining with increasing fervor that lower courts are not respecting Second Amendment rights, and, indeed, are engaging in what some advocates have called “massive resistance” to the court’s decisions.


The court basically has chosen to remain on the sidelines of a national constitutional controversy that grows more intense with each new episode of mass shootings, such as last week in San Bernardino, Calif.


It was mere coincidence that, just days after that incident, the Justices would again refuse to get involved. Over two Justices’ strongly worded dissents, the court on Monday refused to consider the constitutionality of a broad gun control law passed in 2013 in Highland Park, Ill., a suburb of Chicago.  The law bans assault weapons of the type that fires one shot with each pull of the trigger (a semi-automatic weapon, in contrast to a repeating machine gun).  The ordinance also bans bullet magazine containing more than ten rounds.  Eight states and a number of major cities, including New York City, San Francisco and Washington, D.C., have similar bans on assault weapons.


Although it normally takes a few years for a major constitutional issue to work its way up to the Justices, but it does not take that long for sequel cases to reach the court, especially if lawyers pressing such cases move rapidly and get results fairly quickly in lower courts.   There has been no shortage of attempts to draw the Justices back into the Second Amendment controversy, but that has yet to make a difference.


Even so, the Highland Park case that they passed up on Monday was not like most of the others that have been denied review.  Most of those were either attempts to challenge gun licensing laws or limits on public carrying of guns, or attempts to get the court to extend the right of self-defense beyond the home – the only place where the right was specifically recognized in the Heller decision.


The Highland Park case, however, brought a direct challenge by gun rights advocates to a specific ban on a specific kind of firearm, and the banned weapon is said to be the most popular firearm, all across America.  There are nearly 60 million owners of guns in this country, and it has been estimated that one out of every 10 owns an assault weapon.   More than five million are manufactured each year, and they are said to out-sell handguns and are about equal in sales to shotguns.  Bullet magazines that hold more than ten rounds are even more common than assault rifles: they are said to make up almost half of all the handgun and rifle magazines owned by Americans.


All of this data was put before the court in the Highland Park case.  What accounts for the court’s reluctance to review that case, and others?


Several reasons appear to provide at least partial explanations.  The court was divided five-to-four in initially recognizing a new Second Amendment right, and it may be unwilling to perpetuate that division in sequel cases that could expand or limit the right significantly.  It also may be true that some uncertainty has developed among one or more of the Justices in that five-member majority, so there is no dependable way to predict how a new decision would come out.


Further, it may be that the court is struggling internally over the controversy, but has yet to develop a consensus of how to deal with it.  The fact is that the Justices were scheduled to consider the Highland Park case each week for seven consecutive weeks, before finally deciding to deny review, over the stinging dissent of Justice Clarence Thomas, joined by Justice Antonin Scalia.  How much of that time was taken up by internal debate?  How much by Justice Thomas in composing the dissenting opinion?


Finally, it may be that there is some sentiment within the court to allow the lower courts to continue to wrestle with the sequel cases, and maybe there is some desire to let state and local governments experiment with different approaches to gun control.


It is also important to remember that a denial of review by the court, of any case or controversy, is not a ruling that settles the questions in that case.  The court usually does not give reasons for passing up a case, and they did not do so in reaction to the Highland Park ordinance.  Still, it would be hard to imagine a test case that more clearly tested government control of the most popular weapons, so government officials interested in more control no doubt will read what happened on Monday as encouragement – whether or not that was entirely justified.


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