In a major defeat for the National Rifle Association, the Supreme Court decided this week not to take up a challenge to one of the toughest gun-control statutes in America, a law on the books in Highland Park, Illinois.
Through this inaction, the Supreme Court has cleared a path for other communities across the nation to:
—outlaw assault weapons and high capacity magazines,
—declare these arms contraband and confiscate them,
—and hit violators with jail time and/or a sizable fine.
"The Supreme Court has now signaled that this is consistent with Second Amendment," Mike McLively, staff attorney at the Law Center to Prevent Gun Violence, tells Rolling Stone. "This could become a national model."
The Supreme Court let stand an earlier ruling by the Seventh Circuit Court of Appeals that found a community's right to protect itself from gun violence trumps a fundamentalist reading of the Second Amendment. In short, the circuit court ruled that the individual right to bear arms — discovered by the Supreme Court in its 2008 Heller decision — is not nearly as absolute as the NRA would have America believe.
With respect to the individual right to bear arms, circuit judge Frank Easterbrook wrote that "some categorical limits on the kinds of weapons that can be possessed are proper." Communities concerned about the dangers of gun violence are justified, he reasoned, in taking action to limit the impact of that violence. "A ban on assault weapons won't eliminate gun violence in Highland Park," Easterbrook wrote, "but it may reduce the overall dangerousness of crime that does occur."
The assault weapons ban in Highland Park, a suburb of Chicago, is sweeping. Passed in 2013, the gun-control ordinance reads, "No person shall manufacture, sell, offer for display for sale, give, lend, transfer ownership of, acquire or possess any Assault Weapon or Large Capacity Magazine…"
The ordinance defines a large-capacity magazine as holding more than ten rounds. Its definition of assault weapons includes AR-15s, AK-47s and Uzis by name, as well as broad categories of semi-automatic pistols and rifles with a single militarized feature such as "a protruding grip that can be held by the non-trigger hand."
Upon passage, the Highland Park law required prohibited magazines and guns to be moved outside of city limits or surrendered to its chief of police. The law declared remaining assault weapons and high-capacity magazines "contraband" that "shall be seized and destroyed." Violators of the statute now face misdemeanor charges punishable by six months in jail and/or a fine ranging from $500 to $1,000.
In choosing not to review what the NRA decried as an unconstitutional "error," a 7-2 Supreme Court majority turned a deaf ear to the gun lobby. In its friend of the court brief, the NRA's legal team had insisted, "Because the Second Amendment right applies to the common semi-automatic firearms and magazines the City targets, they cannot be banned."
These fundamentalist gun-rights arguments only found sympathy with Justices Clarence Thomas and Antonin Scalia. Thomas, in a fiery dissent joined by Scalia, wrote that the court had upheld a decision "relegating the Second Amendment to a second-class right."
Inaction by the Supreme Court is not as definitive as a new ruling on guns, of course. And it remains possible that the Court is waiting for a split among the appellate courts to trigger a new intervention on gun rights.
But McLively of the Law Center to Prevent Gun Violence says the fact that only Thomas and Scalia signed onto a dissent "sends a pretty strong message that there's not five justices who think this is a violation of the Second Amendment."
"We hope that this emboldens communities to take action," McLively says. "There is not the constitutional issue the gun lobby would have them believe."