Yesterday the Supreme Court announced that it was denying certiorari review in Friedman v. City of Highland Park. That case involved a local ban in Illinois on semi-automatic firearms (which the city called “assault weapons”) and large capacity magazines. A violation of the ordinance is punishable by up to six months and/or a $1,000 fine. The lower courts upheld the ban, and the Court decided against hearing the case.
There was a notable dissent from the cert denial, authored by Justice Thomas and joined by Justice Scalia. The dissent argued that the Court should hear the case, because it involves a “categorical ban on firearms that millions of Americans commonly own for lawful purposes” (it specifically mentions AR-style rifles) and because, as Justice Thomas described it, Second Amendment precedents are just as worthy of being followed as any other precedent. The larger concern was that the Second Amendment has been relegated to second-class status. That’s a fair point, but this is hardly the first case to come to the Court after District of Columbia v. Heller and McDonald v. City of Chicago that questions the constitutionality of a particular gun ban. The Court has rather consistently refused to hear any of these Second Amendment challenges, so yesterday’s decision in Friedman was no surprise.
What might be slightly more notable is that Justice Scalia, who joined the dissent, wrote Heller, and in that case he wrote that the Second Amendment’s protections do not extend to “dangerous and unusual weapons.” Many people believed that Justice Scalia was meaning to include “assault weapons” within that language. In fact, the Heller opinion specifically identifies “M-16 rifles and the like” in its discussion of this limitation, though the opinion is vague about what qualifies as dangerous and unusual.
The real question, then, is whether these kinds of weapons are the modern equivalent of those weapons in common use at the time the Second Amendment was ratified, or that are “typically possessed by law-abiding citizens for lawful purposes,” or rather, are “dangerous and unusual” and thus subject to regulation. That is a good question for the Court to take up, and perhaps it should have done so in this case. Sooner or later, the Court must step in the clarify its holdings in Heller and McDonald. There is simply too much uncertainty in the lower courts and in legislative bodies about which gun restrictions are constitutionally permissible.