Dec. 07--Advocates of stronger gun regulations, particularly in Illinois, have had a rough time in the courts in recent years. Could the tide finally be turning?
In the landmark 2008 District of Columbia v. Heller decision, the Supreme Court ruled that the Second Amendment, contrary to past assumption, protects an individual right to own and use firearms for self-defense. Two years later, it struck down Chicago's prohibition on handguns. In 2012, a federal appeals court found the Illinois ban on carrying concealed guns to be unconstitutional.
But on Monday, the gun control side won a small but notable victory. The Supreme Court declined to consider a lawsuit challenging Highland Park's ban on military-style guns known as assault weapons, along with large-capacity magazines. Two justices said they would invalidate the ordinance, but the others refused to take that step.
What message can be taken from this decision, or nondecision? It could mean that the court thinks banning this type of firearm is permissible. It could mean most of the justices aren't sure and prefer not to address the question just yet, preferring to let lower courts wrestle with it for a while. But in either case, a law that has strong popular support in national polls, as well as sufficient support in Highland Park to be enacted, will be left in place.
Gun rights advocates regard almost any restriction as a violation of the Second Amendment. But the court made it clear in its recent decisions that it disagrees.
"Like most rights, the right secured by the Second Amendment is not unlimited," said the court in 2008. "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
The 7th Circuit U.S. Court of Appeals -- the same one that overturned the concealed-carry ban -- upheld the Highland Park ordinance in April. Judge Frank Easterbrook, who was appointed by Ronald Reagan, argued that assault weapons are not the sort of arms the framers intended to protect (since they didn't exist) and that they are more dangerous than other weapons.
"Why else are they the weapon of choice in mass shootings?" he asked. "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."
Justices Clarence Thomas and Antonin Scalia rejected that reasoning, claiming that the Second Amendment covers all commonly used firearms, regardless of whether they existed when the Constitution was drafted. They insisted that the appeals court had gutted their rulings on the right to keep and bear arms. But for the time being, at least, they are the only justices willing to uphold that hard-line view.
The nation can benefit from efforts at various levels of government with different remedies for gun violence to see how well they work. As Easterbrook noted, "The best way to evaluate the relation among assault weapons, crime and self-defense is through the political process and scholarly debate." The court is wise to let this experimentation proceed.
