The Supreme Court appears to be giving serious consideration to a case that, if taken up by the justices, could strip lawmakers of much of what remains of their ability to address America’s gun violence epidemic — 33,636 people were killed by firearms in the United States in 2013. Indeed, should the justices ultimately side with the plaintiffs in this case, it could set off an arms race where gun makers and the National Rifle Association sprint to ensure that new methods of killing people are widely available as fast as possible so that those methods will gain special constitutional protection.
Friedman v. City of Highland Park largely turns upon the significance of one line in the Supreme Court’s 2008 DC v. Heller decision, which held for the first time in American history that the Second Amendment protects an individual right to possess guns. Though Heller was a tremendous victory for supporters of gun rights, it also held that “the right secured by the Second Amendment . . . was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller also listed several examples of gun regulations that would survive judicial scrutiny.
Among other things, Heller said that the sorts of weapons protected by the Second Amendment, “were those ‘in common use at the time.’” Justice Antonin Scalia added, in his opinion for the Court, that this “limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”
The plaintiffs in Friedman effectively claim that Scalia’s list of examples of laws that would survive Second Amendment scrutiny is an exclusive list — thus, if laws restricting “dangerous and unusual” weapons are allowed, it follows that laws restricting other kinds of weapons are not allowed. They challenge a local ordinance banning assault weapons and large-capacity magazines, claiming that these weapons are actually quite common and therefore cannot qualify as “unusual.” In their petition asking the Court to hear the case, for example, the plaintiffs claim that the challenged ordinance “includes some of the most popular firearms in the Nation,” adding that “between 1990 and 2012, over 5 million AR-platform firearms were manufactured for the domestic commercial market.”
At least one conservative judge disagrees with the plaintiffs’ reading of Heller, however. In an opinion by Judge Frank Easterbrook, a Reagan appointee and frequent speaker at the conservative Federalist Society’s events, the United States Court of Appeals for the Seventh Circuit rejected the idea that Scalia’s list of examples of permissible laws was intended to be an exclusive list. “Heller does not purport to define the full scope of the Second Amendment,” Easterbrook wrote in the opinion the Friedman plaintiffs ask the Court to review. “The Court has not told us what other entitlements the Second Amendment creates or what kinds of gun regulations legislatures may enact,” he continued, adding that “cautionary language about what has been left open should not be read as if it were part of the Constitution or answered all possible questions.”
The Court has not yet agreed to hear this case, although there are early signs that they may do so. The justices originally considered whether to take the case during their October 9th conference, and the Court’s docket indicates that they relisted the case for additional consideration at their October 16th conference. The Court’s recent practice has typically been to relist cases at least once before they agree to hear them. The case is also listed on SCOTUSBlog’s list of “Petitions We’re Watching.”
Should the plaintiffs ultimately prevail in this case, however, it’s not hard to imagine what would happen. Gun manufacturers who develop new and more efficient weapons would have a strong incentive to distribute those weapons to as many people as quickly as possible — even at prices that would not be profitable for the gun maker in the short term — so that those weapons would gain the special constitutional protection sought by the plaintiffs in Friedman. The NRA, meanwhile, is likely to encourage its network of supporters to buy such weapons in order to expand the scope of the Second Amendment. Should a longstanding gun regulation be repealed by a future Congress, moreover, the NRA would have a similar incentive to encourage that the newly legal weapons become bestselling items in order to prevent the ban from being reinstated in the future. Each time America’s gun laws are weakened could trigger a race against the clock where gun makers and the NRA work to distribute newly legal guns as widely as possible.
Indeed, many, although not all, guns that are banned by the ordinance at issue in Friedman were once illegal under a federal assault rifle ban that expired in 2004 under President George W. Bush.
The Court could announce as soon as Monday morning whether it will hear this case.