The Volokh Conspiracy
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Second Amendment Roundup: Supreme Court Considering Arms Ban Petitions on Friday
Whatever happened to long guns good, handguns bad?
The Supreme Court has distributed two important cases for its conference of January 10. One is Snope v. Brown, which concerns whether Maryland may ban semiautomatic rifles that are in common use for lawful purposes. The other is Ocean State Tactical v. Rhode Island, which asks whether a retrospective, confiscatory ban on the possession of ammunition feeding devices that are in common use violates the Second Amendment.
The Court should grant the petitions for writs of certiorari. The cases present a critically important question going to the heart of the Second Amendment – may the government prohibit mere possession of AR-15s and similar semiautomatic rifles and of standard magazines that come with most semiautomatic rifles and pistols?
As I explained in my recent post "Firepower and the Fourth Circuit," Maryland's prohibition on AR-15s and the like rifles was upheld en banc on the merits under reasoning in direct conflict with the Supreme Court's precedents. Likewise, the First Circuit's affirmance of the denial of a preliminary injunction against the Rhode Island ban follows the same trend by certain circuit courts flaunting even the most recent of the Court's rulings.
For most of the Nation's history, long guns – rifles and shotguns – were seen as good, while handguns were depicted by some as bad. The muskets fired at Lexington and Concord became a symbol of American freedom. Restrictions on the carrying of concealed pistols arose in the nineteenth century. New York's Sullivan Law of 1911 required a permit just to keep a handgun in the home. But as the New York court explained in People v. Raso (1958), "a rifle may be possessed in the home or carried openly upon the person on the street without violating any law," since in restricting concealed weapons, the legislature "carefully avoided including rifles because of the Federal constitutional provision and [NewYork's] Civil Rights law provision." I personally heard Justice Scalia tell how, when he was on the high school rifle team, he carried his rifle on the New York subway.
The initial bill that became the National Firearms Act of 1934 listed pistols and revolvers first among the firearms that would be subject to registration. Attorney General Homer Cummings depicted them as the ultimate gangster weapons, but they were removed from the Act as passed.
Repeating rifles with magazines holding numerous cartridges had been around since the mid-nineteenth century in the form of lever-actions. Semiautomatic rifles with detachable magazines were on the market by the turn of the century. Virtually no restrictions on either type were enacted.
Fast forward to District of Columbia v. Heller, in which the District's brief argued that its handgun ban "do[es] not disarm the District's citizens, who may still possess operational rifles and shotguns." The law "continues to allow private home possession of shotguns and rifles, which some gun rights' proponents contend are actually the weapons of choice for home defense." Its amicus Violence Policy Center contended that "a wealth of evidence" shows that "in almost all situations 'shotguns and rifles are much more effective in stopping a [criminal].'"
Invalidating the handgun ban in Heller, the Supreme Court set forth principles that apply to both handguns and long guns. First, "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." Second, the Second Amendment protects arms that are "'in common use at the time' for lawful purposes like self-defense" and are "typically possessed by law-abiding citizens for lawful purposes." Third, handguns as a class are protected by the Amendment and may not be banned; the Court did not need to mention that most handguns are semiautomatic. Fourth, the Court suggested that "M-16 rifles and the like," i.e., fully automatic machineguns, and "sophisticated arms that are highly unusual in society at large" may be banned.
As its interpretative tools, Heller was based on text, which was informed by the original public understanding, and history, particularly the allowance from the Founding that the "carrying of dangerous and unusual weapons" could be restricted, but that arms could not be banned. The Court rejected Justice Breyer's argument that the right could be eliminated based on judicial "interest balancing."
In response to the Heller decision, the District legalized handguns but banned numerous rifles it characterized as "assault weapons" together with "large capacity" magazines. Given the above points from the Heller decision, we thought that a challenge to that ban would be a no-brainer, and brought the case that came to be known as Heller II.
In a 2-1 decision, the D.C. Circuit fully conceded that the banned rifles and magazines were commonly possessed in America, but upheld the ban under intermediate scrutiny, the very method of Justice Breyer that the Supreme Court rejected. In "Reality Check," Georgetown Journal of Law & Public Policy, I explained how the factual record in the case refuted the unsworn claims by antigun lobbyists in the legislative record relied on by the court. But the Heller II decision opened the Pandora's Box of intermediate scrutiny on which other circuits upheld semiautomatic rifle and magazine bans.
The silver lining in the cloud was then-Judge Brett Kavanaugh's dissenting opinion, which is a blueprint for how the Supreme Court should analyze similar rifle bans. The opinion brilliantly exposits Heller's analytic method of text and history as well as traces the over-a-century history in which semiautomatic rifles with detachable magazines have been accepted by and are in common use by the American public. Judge Kavanaugh anticipated what the Supreme Court empathically later held so clearly in Bruen – that the correct method begins and ends with text and history, and as Justice Thomas put it, intermediate scrutiny is "one step too many."
Now denied use of the term "intermediate scrutiny," the Fourth Circuit in Snope and the First Circuit in Ocean State Tactical continue to apply their own subjective judicial balancing tests in which the Second Amendment always loses. The Snope court upheld Maryland's ban because supposedly the 9 mm cartridge, not the .223 caliber cartridge, is best for self-defense, oblivious to the fact that the ban is based on model and generic features, having nothing to do with caliber. Yet even though the majority use .223 rounds, there are AR-15 type rifles designed to fire 9 mm rounds, and they too are banned based on their features.
Similarly, the Ocean State Tactical court decided that no evidence exists that magazines holding over ten rounds "are used in self-defense," and thus that banning them "imposes no meaningful burden" on the right to self-defense. It wrote off what the people actually choose with the half-joke: "True, one could imagine Hollywood-inspired scenarios in which a homeowner would need to fend off a platoon of well-armed assailants without having to swap out magazines."
The Supreme Court should grant cert in these cases. The courts of appeal that have upheld such bans openly flaunt the Court's jurisprudence. It began after Heller, and it has now repeated itself after Bruen. While the states with bans are outliers, their large populations represent a significant number of Americans whose rights are being trampled.
There is no circuit split because most states respect the Second Amendment and would not enact such bans. The circuits that have upheld the bans appear to reflect the political judgments of at least some of the states under them.
The Snope litigants are represented by David Thompson (see cert petition) and the Ocean State litigants are represented by Paul Clement (see cert petition). I've covered the topic at length in America's Rifle: The Case for the AR-15.
There are also two other worthy cases that are distributed for the Court's conference on January 10. One is Gray v. Jennings, which seeks review of the Third Circuit's affirmance of the denial of a preliminary injunction against Delaware's ban on semiautomatic rifles. The issue posed is "Whether the infringement of Second Amendment rights constitutes per se irreparable injury." The other is Maryland Shall Issue v. Moore, which seeks review of Maryland's handgun license qualification requirement, which requires a redundant background check and duplicative waiting periods.
