Will the Supreme Court Rule on This Second Amendment Case?

 The Supreme Court may soon have another showdown on the Second Amendment, according to Amy Swearer. “The U.S. Court of Appeals for the Fourth Circuit upheld Maryland’s ban on so-called assault weapons earlier this month, likely setting the stage for the next major Second Amendment showdown at the Supreme Court.” 

The case, Bianchi v. Brown, features Maryland residents who challenge the constitutionality of a 2013 state law that generally prohibits them from buying or possessing any firearm deemed an “assault weapon.”

The statute defines that term to include hundreds of specific models of semiautomatic rifles, as well as any other semiautomatic rifle that either (1) has a fixed magazine capable of holding more than ten rounds, (2) has an overall length shorter than twenty-nine inches, or (3) has both a detachable magazine and at least two of the following three features: a folding stock, flash suppressor, or grenade or flare launcher.

While semiautomatic rifles aren’t outright prohibited, Maryland residents are required to buy heavily modified “featureless” versions of those guns. The plaintiffs argue that this prohibition on owning virtually all of the most popular semiautomatic rifles in the nation violates the Second Amendment.

The Supreme Court hasn’t definitively addressed the question of whether the Second Amendment protects the possession of semiautomatic rifles, but to say that its overall Second Amendment jurisprudence favors the plaintiffs’ argument is an understatement, to say the least.

First, in District of Columbia v. Heller, the Supreme Court in 2008 struck down the District of Columbia’s total ban on the possession of handguns and explained that the Second Amendment’s protections extend “prima facie to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

The right is not unlimited, and the Supreme Court noted a historical tradition of “prohibiting the carrying of ‘dangerous and unusual weapons.’” It emphasized, however, that handguns are “commonly possessed by law-abiding citizens for lawful purposes,” and constitute a “class of ‘arms’ that is overwhelmingly chosen American society” for exercising their natural right of self-defense.

Most recently, in New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court explained that judicial analyses of Second Amendment challenges must be based on text, history, and tradition, and not on any interest-balancing tests that allow courts to determine whether the government has a sufficiently compelling reason for the regulation.

Bruen didn’t specifically delve into what types of arms are protected, but the case is nonetheless instructive about how courts must go about discerning the answer to that question: When the law regulates conduct that is protected by the plain language of the amendment, the government must demonstrate that the law is consistent with the nation’s historical tradition of firearms regulation.

Under the Bruen test, the government doesn’t have to show a historical doppelganger for its modern law, but at the very least, it needs to provide evidence of historical laws that were relevantly similarly both in how they burden the right to keep and bear arms, and in the reason for why the laws burden that right. Additionally, the historical tradition must be formed by more than a handful of late-in-time historical outliers.

In short, under the Supreme Court’s jurisprudence, the government would have to show some longstanding national tradition of not only banning the civilian possession of semiautomatic rifles like the AR-15, but banning them because they are a type of weapon that is so inherently dangerous and unusual that it’s not commonly possessed by law-abiding citizens for lawful purposes. It can’t do so.

Swearer continued her article by explaining the “semiautomatic rifles like the AR-15 are hardly a new invention” with the “first successful semiautomatic rifle design was produced in the 1880s.” In addition, new features – “such as pistol grips, collapsing stocks, and barrel shrouds” – that assault and non-assault rifles “have no bearing on the weapon’s lethality, functionality, or concealment.”

Leftists continue their attempts to destroy Americans’ right “to keep and bear arms.” I hope that the Supreme Court takes this case and rules once and for all.