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The Supreme Court could hand down a decision any day now in National Association for Gun Rights v. City of Naperville, a case that could legalize assault weapons and high-capacity magazines in all 50 states.
The case challenges a Naperville, Illinois, ordinance and a similar Illinois state law, both of which ban assault weapons, which the state law defines to include certain semiautomatic rifles such as AR-15s and AK-47s. Additionally, the state law prohibits the sale of a “large capacity ammunition feeding device,” which the statute defines as long gun magazines that hold more than 10 rounds of ammunition, or handgun magazines that hold more than 15 bullets.
The plaintiffs, which include a gun shop owner and a gun rights group, claim the two statutes violate the Second Amendment.
Should the Supreme Court accept that argument and overturn these laws, it would have sweeping implications for the entire country. That decision would need to be followed throughout the entire nation — which would most likely mean that neither any state nor the US Congress could ban assault rifles or high-capacity magazines.
And there is good reason to fear that this Court could, at the very least, decide to make semiautomatic assault rifles legal throughout the United States. In 2011, a federal appeals court upheld the District of Columbia’s ban on assault weapons — over the dissent of an up-and-coming right-wing judge named Brett Kavanaugh.
Although the Supreme Court’s decision in District of Columbia v. Heller (2008) permitted lawmakers to ban “dangerous and unusual weapons,” Kavanaugh read that decision narrowly in his 2011 opinion. He reasoned that semiautomatic rifles are neither more dangerous than lawful weapons such as handguns, nor are they especially unusual — among other things, he argued that at the time of his opinion, “about two million semi-automatic AR-15 rifles have been manufactured.”
Flash forward a dozen years, and Kavanaugh is now the median justice on a Supreme Court dominated by Republican appointees. So if he still believes semiautomatic rifles aren’t particularly “dangerous and unusual,” he is well-positioned to turn the opinion he wrote in 2011 into law.
That said, there is some uncertainty about whether the Court will issue a sweeping pronouncement right away on the legality of assault rifles. The Naperville case arises on the Court’s “shadow docket,” a mix of emergency motions and other expedited matters that the Court sometimes decides without full briefing or oral argument.
Shortly after Justice Amy Coney Barrett’s appointment gave Republican appointees a supermajority on the Supreme Court, the Court started handing down transformative — occasionally revolutionary — decisions on its shadow docket. In a fall 2021 concurring opinion, however, Barrett expressed concern that her Court was deciding too many cases on its shadow docket, warning that litigants were using the shadow docket to get the Supreme Court to opine on cases it ordinarily would not hear, and “on a short fuse without benefit of full briefing and oral argument.”
Notably, Barrett’s opinion in that 2021 case, Does v. Mills, was joined by Kavanaugh.
So there is a real chance that the Court will delay deciding the questions raised by Naperville until it or a similar case has been fully litigated in the lower courts and the case reaches the justices through the ordinary, more time-consuming process that the Court uses to hear most major cases.
But even if the Court does decide to push off the Naperville case until another day, when that day comes there will likely be five votes on this Supreme Court to legalize assault weapons throughout the country.
The Court’s Second Amendment decisions are incoherent and atextual
The Supreme Court’s Second Amendment jurisprudence turn a sharp rightward turn in Heller, which was the first case in American history to hold that the Constitution protects an individual right to bear arms. And Heller and the Court’s later Second Amendment decisions are largely divorced from the actual text of the Second Amendment.
That amendment, of course, provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Thus, unlike most constitutional amendments, the Second Amendment does not simply announce that a particular right exists (the right to “keep and bear Arms”) it also states the purpose of this right (to provide for “a well regulated Militia”).
As the Court explained in United States v. Miller (1939), the “obvious purpose” of the Second Amendment was to “render possible the effectiveness” of militias, and the amendment must be “interpreted and applied with that end in view.”
In Heller, however, the Court abandoned this textualist approach to the Second Amendment, holding that the actual purpose of the amendment is to protect an individual right to “self-defense.” As the Court said in its most recent Second Amendment decision, New York State Rifle & Pistol Association v. Bruen (2022), “individual self-defense is ‘the central component’ of the Second Amendment right.”
Yet Heller also held that “the right secured by the Second Amendment is not unlimited.” And, at the insistence of now-retired Justice Anthony Kennedy, a relatively moderate conservative, the Heller opinion enumerated several specific limitations on the right to bear arms, including a rule permitting lawmakers to ban “dangerous and unusual weapons.”
Bruen was a 6-3 decision that expanded the Second Amendment beyond the bounds laid out in Heller — it struck down a 109-year-old New York law that limited who could obtain a license to carry a concealed firearm. Significantly, however, Kavanaugh wrote a separate concurring opinion, joined by Chief Justice John Roberts, which emphasized that several of Heller’s limits on the right to bear arms, including the restriction on “dangerous and unusual weapons,” remain good law.
That suggests, at the very least, that the Court’s current majority will honor this limit on the Second Amendment right. Kavanaugh, plus Roberts and the three liberal justices, form a working majority that supports bans on dangerous and unusual weapons.
But Kavanaugh has also signaled that he reads the words “dangerous and unusual weapons” very narrowly.
The Court is likely to strike down assault rifle bans — eventually
In his 2011 dissenting opinion on assault rifles, Kavanaugh explained why he thinks that semiautomatic rifles like the ones captured by DC’s assault weapons ban do not qualify as dangerous or unusual.
Recall that Heller essentially nullified the first 13 words of the Second Amendment, and ruled that the actual purpose of this amendment is to protect an individual right to self-defense. After inventing this new, atextual right to personal self-defense, Heller concluded that handguns enjoy special constitutional protection because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family.”
Kavanaugh argued in his 2011 opinion that, if handguns do not qualify as “dangerous” weapons, then neither can semiautomatic rifles of any kind — because “semiautomatic handguns are used in connection with violent crimes far more than semi-automatic rifles are.”
He has a point. According to the FBI, more than 10,000 people were murdered by a firearm in 2019 alone — and nearly 6,400 of these murders were committed by a handgun. Meanwhile, only 364 gun murders were committed by a rifle of any kind.
It’s worth noting that 3,281 of all gun murders were attributed to a “firearm, type not stated,” so it’s likely that the absolute number of murders committed with a handgun or a rifle is higher than the FBI’s raw numbers suggest. Nevertheless, the fact remains that, if you only count gun murders where the type of firearm is known, about 90 percent of such murders were committed with a handgun. Only about 5 percent were committed with a rifle.
Similarly, Kavanaugh argued that assault rifles are not “unusual” because they are widely owned by civilians (Congress banned assault weapons in 1994, but that law expired after 10 years and was not renewed). As noted, Kavanaugh argued that over 2 million AR-15s had been made when he wrote his 2011 opinion. He also argued that “the AR-15 alone accounted for 5.5 percent of firearms and 14.4 percent of rifles produced in the United States for the domestic market.”
There’s plenty to quibble with in Kavanaugh’s opinion. For starters, handguns are the most commonly used murder weapon because they are easily concealed and easily stored in a nightstand or in a similar location in the home. But that doesn’t mean that assault rifles are any less dangerous when they are used to commit premeditated murder, sometimes in a mass shooting.
But, in any event, Kavanaugh is the median justice on the current Supreme Court. So his views carry a great deal of sway. If he believes that assault rifle bans are unconstitutional, it is likely that he has the votes to declare them unconstitutional — though it remains an open question whether he will do so on the shadow docket.
