The Supreme Court is already slated to consider a challenge to the ban on so-called assault weapons enacted by Cook County, Illinois at its December 5 conference, but the justices will soon have another case to examine as well.
On Monday the Second Amendment Foundation, Connecticut Citizens Defense League, and several individual plaintiffs filed a cert petition with SCOTUS in a lawsuit called Grant v. Rovella, seeking to overturn a Second Circuit Court of Appeals decision that upheld the validity of the semi-auto ban.
As the plaintiffs argue, Connecticut’s ban encompasses “many ordinary and common semiautomatic firearms” that are “mechanically and functionally identical to every other semiautomatic firearm in the way that they fire.” They note that semiautomatic firearms are “exceedingly common”, and argue they’re fully protected by the Second Amendment.
The district court, however, denied injunctive relief to the plaintiffs after determining they had failed to demonstrate the banned firearms are in “common use for self-defense.” That is not what the Supreme Court has said about arms that are protected by the Second Amendment. Instead, the Court has held that arms that are in common use for lawful purposes, including but not limited to self-defense, fall under the umbrella of the Second Amendment’s protections. Lower courts across the country, however, have disregarded the Court’s statements and imposed their own, more restrictive, test of an arm’s constitutionality.
A Second Circuit Court of Appeals panel upheld the district court’s decision, assuming but not deciding that the arms in question are arms within the meaning of the Second Amendment, but concluding that the ban fits within the national tradition of gun ownership.
It began its historical analysis by stating that the ban warranted a less demanding historical inquiry because AR-style rifles present the unprecedented societal concerns “of mass shootings resulting in ten or more fatalities.” Applyingthat watered down standard, the panel found that AR-style rifles are “dangerous and unusual,” a category it defined to “encompass[] those arms that legislators determined were unusually dangerous because of their characteristics.”
… The panel did not say whether the Second Amendment limits the weapons that legislatures may deem unusually dangerous. It did assert, however, that AR-style rifles, like Bowie knives, “are particularly suited for criminal violence[.]”
An absurd assertion, given that rifles of any kind are rarely used in violent crimes. And as the Supreme Court itself has noted in Smith & Wesson v. Mexico, AR-15s are commonly owned and popular throughout the United States.
The plaintiffs also argue, though, that the standard used by the lower courts to uphold Connecticut’s ban could be used to justify a ban on almost every firearm on the market today, except for the handguns the Court examined in Heller.
The panel held that the Second Amendment permits governments to ban “unusually dangerous weapons,” but it did not say what makes a firearm unusually dangerous. It said only that this category “encompasses those arms that legislators determined were unusually dangerous because of their characteristics.”
The panel assured Petitioners that they can still acquire and possess many semiautomatic weapons that have been “deemed to be less dangerous by the legislature,” including “popular semiautomatic hunting rifles like the Ruger Mini-14.” But it did not explain why Connecticut could not ban all these firearms, too. It is especially difficult to see why, under the panel’s rationale, Connecticut could not ban other semiautomatic hunting rifles, which are not meaningfully different from AR-15s in functionality. In fact, the panel’s reasoning suggests that the only limit on Connecticut’s power to ban any weapon at all is the judgment of its legislature. Yet this Court has held three times that the Second Amendment does not countenance “judicial deference to legislative interest balancing.” That is because “[t]he Second Amendment ‘is the very product of an interest balancing by the people’ and it ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense.”
The cert petition argues that if the Supreme Court had used the Second Circuit’s standard in the Heller decision, Washington, D.C.’s ban on handguns almost certainly would have been upheld.
After all, the District Council determined that handguns had “a particularly strong link to undesirable activities in the District’s exclusively urban environment.” And the Council “did not seek to prohibit possession of other sorts of weapons deemed more suitable for an ‘urban area,’” such as shotguns. It is hard to see how applying the Second Circuit’s rationale in Heller could have led to any conclusion other than that lawmakers were entitled to “presume” that handguns were “not used or intended to be used for lawful purposes.”
Handguns are, by far, the weapon of choice for criminals, but the Supreme Court said that didn’t matter in Heller. They are also, by far, the weapon of choice for Americans who possess firearms for self-defense. That doesn’t mean, however, that arms that are less commonly used in self-defense are automatically excluded from the Second Amendment’s protections. Nor does it mean that any legislature can decide a particular firearm or class of arms are “unusually dangerous” and prohibit their lawful possession.
The state of Connecticut now has 30 days to respond to the petition, though it can request an extension. The state is also the defendant in another challenge to its gun and magazine ban called National Association of Gun Rights v. Lamont, with a cert petition filed in that case back in early October. Connecticut did request and received an extension on filing its reply, which is now due on December 8.
The Court probably won’t hear either case in conference until 2026, and if it does grant cert to one or both of them oral arguments would most likely be held next fall at the earliest. Still, if the Court does plan on addressing semi-auto bans in the near future, as Justice Brett Kavanaugh suggested when the Court declined to consider Maryland’s “assault weapons” ban earlier this year, then Grant and/or NAGR v. Lamont would provide the Court with an excellent opportunity to do so… and to shut down once and for all the ludicrous argument deployed by lower courts that commonly-owned semi-automatic firearms labeled by their opponents as “assault weapons” can be prohibited because they’re not commonly used in self-defense.
Editor’s Note: After more than 40 days of screwing Americans, a few Dems have finally caved. The Schumer Shutdown was never about principle—just inflicting pain for political points.
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