Supreme Court Reviews Semiautomatic Rifle Bans

The Supreme Court’s review of cases involving gun control highly concerns advocates for such measures, especially this term. Two cases from Illinois and Connecticut, scheduled for oral arguments in December, focus on whether the Second and Fourteenth Amendments protect the right to own semiautomatic rifles like the AR-15. This decision is crucial in determining if constitutional rights are inadvertently supporting firearm-related deaths.

Gun rights groups expect the Supreme Court to rule against semiautomatic rifle bans. Their optimism is based on a series of favorable rulings since 2008. The landmark decision in District of Columbia v. Heller affirmed that the Second Amendment provides the individual right to possess firearms. Further rulings extended these rights, with New York State Rifle and Pistol Association, Inc. v. Bruen declaring that restrictions on firearm ownership are presumed unconstitutional under the Second Amendment’s plain text.

The approach adopted in the Bruen decision dismisses balancing government interests with individual rights, commonly used in First and Fourth Amendment cases. Instead, it applies a ‘history and tradition’ test, under which gun laws are valid only if they align with historical firearm regulations traditions. This poses a significant challenge since modern firearms are more powerful than those considered in historical contexts.

Connecticut responded to the Sandy Hook Elementary School shooting by passing legislation banning certain semiautomatic rifles. A similar tragedy occurred in Highland Park, Illinois, on July 4, 2022, with a mass shooting resulting in several fatalities. Cook County reaffirmed its ordinance restricting assault-style weapons sales and possession, now under Supreme Court scrutiny.

Several mass shootings involving semiautomatic rifles have occurred in different settings across the United States, prompting legislative attempts at weapon restrictions. The gun rights lobby relies on the Bruen opinion, asserting judicial evaluation of firearms restrictions’ costs is inappropriate.

However, there is hope. The Supreme Court has recently relaxed the ‘history and tradition’ standard in U.S. v. Rahimi to prevent domestic abusers from possessing firearms. Justice Brett Kavanaugh might influence the ruling in assault weapon cases due to his previous acknowledgments of circumstances permitting constitutional rights exceptions, as seen in the birthright citizenship case. He suggested exceptions can emerge in response to new, unforeseen circumstances, a perspective applicable to gun regulations.

The increasing availability of semiautomatic weapons poses greater public safety risks than issues associated with air travel in the context of constitutional rights. While the Second Amendment grants the right to bear arms for self-defense, it should not surpass other rights within the Bill of Rights.

If constitutional rights can adapt to ‘new circumstances’ concerning birthright citizenship, parallel reasoning should allow sensible restrictions on firearms under the Second Amendment.

Steven Lubet serves as the Williams Memorial Professor Emeritus at Northwestern University Pritzker School of Law and coauthored ‘Judicial Conduct and Ethics.’