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Tuesday, December 8, 2015

City Assault Weapons Ban Stands, Supreme Court Declines Review

In April, the Seventh Circuit Court of Appeals upheld the Northern District of Illinois’ decision upholding the City of Highland Park’s ban on assault weapons and large capacity magazines against a Second Amendment challenge. The City resident challenging the ban, along with the Illinois State Rifle Association, appealed the Seventh Circuit’s decision. Yesterday, the U.S. Supreme Court declined to hear the appeal. That means the City's assault weapon ban stands.

Justice Thomas, joined by Justice Scalia, dissented from the decision and argued that the “categorical bans on firearms that millions of Americans commonly own for lawful purposes” deserved review under the court’s Second Amendment precedents. Justice Thomas criticized the test employed by the Seventh Circuit for evaluating the constitutionality of the bans, which asked “whether a regulation bans weapons that were common at the time of ratification or those that have some reasonable relationship to the preservation or efficiency of a well-regulated militia,. . . . and whether law-abiding citizens retain adequate means of self-defense.” Instead, Thomas concluded that the scope of the Second Amendment guarantee only excludes “those weapons not typically possessed by law-abiding citizens for lawful purposes.” Where the Second Amendment is an individual right, and not a militia right, Thomas argued that it was “wrong for the Seventh Circuit to delegate to States and localities the power to decide which firearms people may possess.” Thomas was also critical of the speculative evidence used to support the ban, including reliance on the availability of alternatives and conjecture that the ordinance might make the public feel safer.

As it stands, the Supreme Court’s decision confirms that state and local firearms regulations can be consistent with the Second Amendment. The City of Highland Park’s ban was likely successful because it was supported by empirical studies, and allowed handguns and most long guns for use in self-defense. According to Steven Elrod, the attorney representing the City of Highland Park and the author of the ordinance, “we were well aware of the teachings of Heller and McDonald, and crafted the ordinance so that was not a complete and comprehensive ban, but rather concerned only those highly dangerous and unusual weapons that are more likely found in military combat than in self-defense in one’s home.” While Justice Thomas’ dissent indicates that a segment of the Supreme Court would impose more aggressive review for local firearms regulations, “[s]tate and local experimentation with reasonable firearms regulations will continue under the Second Amendment” as the Court contemplated in McDonald v. City of Chicago.

Although this means that Highland Park’s assault weapon ban is enforceable, that does not mean other Illinois municipalities have the right to enact similar bans. In 2013, the Illinois legislature imposed a very narrow window for adopting an assault weapon ban. That window has since passed. As a result, any assault weapons ban or regulation adopted after July 19, 2013 that is inconsistent with state law is unenforceable and invalid. This preemption provision means the state will be responsible for future assault weapons regulations in Illinois. Bills to extend or reopen this "window" have not made it out of committee in either the Illinois house or senate.

Post Authored by Daniel J. Bolin and Julie Tappendorf, Ancel Glink


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