Friedman v. City of Highland Park has been scheduled for discussion at four successive SCOTUS conferences. The case is a challenge to a ban of assault weapons and high-capacity magazines by a northern suburb of Chicago. Once again last Friday (November 6, 2015), the Supreme Court did not act on Friedman’s petition to hear the case.
We covered it — and the astonishing arguments by the pro-gun advocates — in SCOTUS Makes the Gun Guys Wait. John Elwood, a knowledgeable commentator at SCOTUSBlog, called it “... the glamour case among the OT2015 Second Amendment relists, a high profile challenge ...” (To decode, "OT” is the October term of the Court, “relists” are cases held over for further consideration.)
The Court takes fewer than a hundred cases from several thousand pressed upon it each year. (Almost 200 cases are listed for the Court’s next conference.) Only rarely does it explain its reasons and it does not disclose its conference vote tally. The Court hears a case when four of its justices vote to take it. Why an appeal is or is not accepted is left for speculation.
Among many possibilities, it may be that ...
The fifth vote is tenuous? Perhaps the 5-4 majority (Justices Roberts, Scalia, Thomas, Alito and Kennedy) in the Court’s Second Amendment cases is fragile. Maybe there are four votes to hear this case and reverse lower court decisions that upheld the ban, but the four are reluctant to risk that a fifth vote might cut back on the Second Amendment rather than expand it. Or the liberals have four votes, but can’t be sure of the fifth until all the briefs on the merits are in … which doesn’t happen for several months after the Court takes the case. (What has been briefed so far is simply the Petition for Certiorari, which is the routine formal request to bring the record below before the Court for review.)
Still waiting, waiting ... The Heller opinion invited experience with applications of the decision by lower Federal courts, state courts and legislatures. The Court has not accepted a four-square Second Amendment rights appeal since McDonald in 2010. It has been in no hurry to rule further.
A “better” case may be coming to the Court’s doorstep in a few months - an appeal of New York’s and Connecticut’s bans of assault weapons and high-capacity magazines. Some may believe this case is more prominent, involving the acts of legislatures and more widely debated than Highland Park’s municipal ordinance.
The Court is concerned with consequences? A pro-gun advocate points to the citizen militia argument:
We’ll frankly be shocked if the Court takes up the case for a very simple reason: if they do hear the case they’ll be forced to admit that the semi-automatic, “miltary-style” firearms banned in Highland Park are precisely the kind of contemporary arms of military utility that the militia must have according to the Second Amendment.
The Second Amendment is not about hunting, nor target shooting.
The explicit purpose of the Second Amendment is to ensure that the pre-existing natural right of the people to bear arms shall not be infringed …
The Supreme Court must overturn such a ban if they take up the case, and they know it …
While that may sound over the top, look at the details of that line of reasoning, concluding with an apocalyptic prediction of “inevitable civil war:”
The AR-15 [one of the banned assault rifles] … is clearly the “modern musket” “in common use” as the militia arm of choice in the United States, with the American civilian owning between five and ten times as many AR-15’s as the U.S. military owns M4s and M16s. [The M16 and M4 are US military semi- and fully automatic submachine guns.]
If the Supreme Court fails to take up the case, or takes up the case and decides against Friedman, then they will have set the stage for an inevitable civil war, pitting the nation’s radical anti-gun Democrats who desire to destroy the Second Amendment against the 100-140 million American gun owners who will not comply with laws and court decisions that clearly fly in the face of original intent.”
J. Scalia’s majority opinion in Heller and the pro-gun history writer/scholars in their modern rationalization for the Second Amendment struggle with modern parallels to the guns of the 1780’s. Is your 2A paradigm of civilians in Revolutionary times self-equipped with Brown Bess flintlock muzzle-loaders forming a militia to counter the possible tyranny of government? Well then, assault rifles closely resembling those in military combat use in the 20th Century might fit right in. It was an issue Scalia referred to in 2008, then ducked.
To gun law reformers, it boggles the mind that the Supreme Court would treat high-powered semi-automatic assault weapons as a constitutional right to protect against government oppression … but then, that is what some Gun Guys are insisting the law must be. (The petitioners in Friedman focus their argument on self-defense.)
But after all, that is the hard question now before this honorable Court.
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