Federal courts are quietly allowing gun control – and SCOTUS is letting them

June 13, 2016

(Reuters) – Later this week, the justices of the U.S. Supreme Court are scheduled to consider a petition by Connecticut gun rights advocates who want the court to strike down the state’s restrictions on military-style semiautomatic weapons – the type of firearm used in this weekend’s horrific mass shooting at a nightclub in Florida and in the 2012 massacre of first graders at Sandy Hook elementary school.

The gun advocates claim Connecticut’s law, which bans semiautomatic firearms with special features that supposedly make it easier for shooters to spray bullets rapidly and to avoid detection, is a violation of the Second Amendment. They also contend state and municipal bans on these military-style guns are at odds with the Supreme Court’s 2008 precedent in the landmark Heller case, in which the justices struck down the District of Columbia’s sweeping ban on handguns because, the court said, people have a constitutional right to own guns.

But if recent history is a guide, the Supreme Court will refuse to take the Connecticut case, continuing a trend of allowing federal appellate courts to read Heller precedent narrowly. Congress may be incapable of enacting federal legislation to restrict the weapons of choice for mass killers. States and cities that pass such laws, however, have so far been able to withstand constitutional scrutiny.

The Connecticut law, which toughened previous restrictions after the Sandy Hook tragedy, was upheld in October by the 2nd U.S. Circuit Court of Appeals, which mostly okayed New York state gun control measures in the same ruling. The 2nd Circuit lined up with federal appellate colleagues from the District of Columbia and the 7th Circuit in finding that Heller and a subsequent 2010 Supreme Court decision, McDonald v. City of Chicago, do not preclude regulation of “dangerous and unusual weapons.”

The big post-Heller question has been what standard of review courts would use to evaluate state and local laws barring dangerous and unusual weapons. The Supreme Court didn’t specify whether gun control laws are subject to strict scrutiny, which sets a high bar for states and municipalities to prove the laws are necessary, or to intermediate scrutiny, which gives lawmakers more latitude. The 2nd, 9th and D.C. Circuits have adopted the looser standard in upholding gun control laws. The 7th Circuit came up with its own test, based on whether citizens can adequately defend themselves despite the regulation, but also said strict scrutiny doesn’t apply.

The gun rights advocates who brought the 7th Circuit case, which challenged semiautomatic weapon regulations in the city of Highland, Illinois, petitioned the Supreme Court for review of the appellate decision. In December, as my Reuters colleague Lawrence Hurley reported at the time, the justices rejected the request. Justice Clarence Thomas dissented from decision not to take the case, asserting along with Justice Antonin Scalia – author of the Heller opinion – that the 7th Circuit was flouting Supreme Court precedent on the Second Amendment. But the other justices didn’t bite at argument by pro-gun lawyers at Cooper & Kirk that the 7th Circuit and other federal appeals courts were defying the Supreme Court’s instructions.

The 4th Circuit gave the gun lobby a new round of Supreme Court ammunition in February, when a three-judge panel split with sister courts in the 2nd, 7th, 9th and District of Columbia Circuits and held that gun control laws are subject to strict scrutiny. In Kolbe v. Hogan, the panel did not reach a conclusion on the constitutionality of a Maryland ban on some semiautomatic weapons but said the state must meet the high bar of proving and overriding public interest in curtailing gun owners’ Second Amendment rights.

The Kolbe opinion figured prominently when Cooper & Kirk filed gun owners’ petition for Supreme Court review of the 2nd Circuit’s ruling in the Connecticut case. (Gun rights proponents did not appeal the 2nd Circuit’s decision on New York’s laws.) The Kolbe decision enabled the law firm, which also represents the National Rifle Association, to argue not just that the circuit court’s opinion disregarded Supreme Court precedent – a position that failed to convince the justices to take the 7th Circuit case just a few months earlier – but also that federal circuits are split on the appropriate standard for evaluating gun control laws so the Supreme Court must take the Connecticut case to resolve the split.

The only problem with that argument is that in March, after Cooper & Kirk filed its petition in the Connecticut case, the 4th Circuit vacated the Kolbe decision and agreed to rehear the case en banc. As lawyers for the Connecticut attorney general argued in their May 16 brief opposing Supreme Court review, there’s no remaining split among the federal circuits when it comes to gun control laws. “The lower courts that have fully and finally considered whether a state may prohibit access to assault weapons have universally concluded that states may do so,” the brief said.

The withdrawal of the Kolbe decision does not bode well for gun proponents hoping the Supreme Court will take the Connecticut case. Nor does Justice Scalia’s death. And my guess is that gun advocates know their chances aren’t very good: There is only one amicus brief backing the petition for review, albeit on behalf of a coalition of dozens of small gun owners’ groups.

I left phone messages for David Thompson of Cooper & Kirk, who is counsel of record for the Connecticut gun owners, and amicus brief author Paloma Capanna of the Second Amendment Coalition. Neither returned my call.

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