Gun Rights Groups Keep Challenging A Blue State Phenomenon — And They Keep Losing

When Justice Clarence Thomas penned a sweeping reinterpretation of the Second Amendment two years ago, it came as welcome news to opponents of assault weapons bans. Thomas’ ruling in the case of New York State Rifle and Pistol Association v. Bruen instructed lower courts to stop balancing the need for public safety against the right to bear arms.

Instead, the constitutionality of gun restrictions would depend only on whether a given law fit within a tradition of firearm regulation dating from between the signing of the Bill of Rights in 1791 and the end of the Civil War.

After Bruen, the Supreme Court vacated four lower court decisions upholding gun laws and sent them back for reconsideration under the new Second Amendment standard. One of them was a case challenging the constitutionality of Maryland’s assault weapons ban.

Gun rights groups had spent decades trying to win Second Amendment protections for semiautomatic rifles without success. With Bruen, they got a favorable ruling that opened a new line of attack on assault weapons bans. The flagship liberal response to the problem of mass shootings never looked so vulnerable. New Mexico legislators . “Therefore, this Court declares the statutes to be unconstitutional.”

The 9th U.S. Circuit Court of Appeals blocked Benitez’s decision from taking effect, but the Bruen ruling required a new analysis. Benitez declared the law unconstitutional again last year. The 9th Circuit has so far blocked Benitez’s decision from taking effect and has left the case pending while it considers the constitutionality of California’s magazine restrictions.

Gun groups have continued to press the same argument that resonated with Benitez in the growing number of challenges to assault weapons bans. Production figures indicate that Americans own roughly 28.1 million modern semiautomatic rifles for recreational shooting, hunting and self-defense, according to Mark Oliva, spokesman for the National Shooting Sports Foundation, the industry trade group. That figure is higher than the number of Ford F-150s on American roads.

“These are by any stretch of the definition commonly owned, commonly used, typically possessed firearms,” Oliva told HuffPost.

Bruen appeared to bolster that argument. Not only are AR-15s and AK-47s widely possessed, but states would now have to show that banning that class of weapons fits within a historical tradition.

Last week’s ruling from the 4th U.S. Circuit Court of Appeals laid out the emerging legal defense for assault weapons bans in an era of expanding Second Amendment rights. Assault rifles, the 15-judge panel ruled by a vote of 10-5, are not protected by the Second Amendment because they are “ill-suited and disproportionate to the need for self-defense” — and the Heller standard only gives individuals the right to bear arms in order to defend themselves. That generally means sticking with handguns, according to the 4th Circuit ruling.

Congress has historically restricted several classes of dangerous firearms, the ruling noted. The National Firearms Act of 1934 restricts sawed-off shotguns, short-barreled rifles and machine guns. Civilians generally cannot buy machine guns or conversion devices manufactured after 1986.

“Our nation has a strong tradition of regulating excessively dangerous weapons once it becomes clear that they are exacting an inordinate toll on public safety and societal wellbeing,” the ruling says, later adding: “The Second Amendment, with its ‘central component’ of ‘individual self-defense,’ is not concerned with ensuring citizens have access to military-grade or gangster-style weapons.”

The ruling disputes that the Heller standard means that, once a gun is in common use, states can no longer ban it. Instead, the ruling contends that the Heller standard only means that the Second Amendment does not specifically protect weapons that civilians rarely possess.

“We decline to hold that arms manufacturers can secure constitutional immunity for their products so long as they distribute a sufficient quantity before legislatures can react,” the ruling reads.

The Firearms Policy Coalition, a plaintiff in the Maryland lawsuit, described the 4th Circuit’s ruling as “incredibly flawed” in an email, contending that it “begs for review as it ignores the text of the Constitution, [flouts] the Supreme Court’s binding precedents, and ignores relevant history.”

“FPC will take the Fourth Circuit’s terrible decision to the Supreme Court without delay,” the group’s president, Brandon Combs, said in a press release. “Our objective is simple: End all bans on so-called ‘assault weapons’ nationwide.”

Justices Clarence Thomas and Samuel Alito have both expressed interest in clarifying what weapons qualify for Second Amendment protection, with Thomas referring to a 7th U.S. Circuit Court of Appeals decision upholding an Illinois assault weapons ban as “highly suspect.”

But Thomas no longer appears to guide the Supreme Court’s thinking on the Second Amendment.

After he dropped the Bruen bombshell, courts across the country reached disparate conclusions about the constitutionality of longstanding gun restrictions. The first one to come before the Supreme Court was the case of United States v. Rahimi out of Texas.

Zackey Rahimi had allegedly beaten and threatened the mother of his child with a firearm, leading a judge to place him under a protective order for domestic violence that made it a federal felony to possess firearms. While under that order, Rahimi allegedly fired guns at four separate people. When police searched his home in connection with the string of shootings, they found a semiautomatic rifle under his bed and a pistol with an extended magazine on a bedside table.

Thomas was the only justice to conclude that the federal government had violated Rahimi’s Second Amendment rights by convicting him for possessing guns under the protective order, exposing an unforeseen chasm between his Second Amendment absolutism and the rest of the court.

“The other eight justices severely rebuked him on the Second Amendment,” Douglas Letter, chief legal officer at Brady United, said of Thomas. “I’ve talked to a bunch of other constitutional scholars, and none of us can think of a decision where, a mere two years later, that justice loses 8-1 on the meaning of his own opinion.”

For now, the Supreme Court will likely let Second Amendment litigation play out in the lower courts — probably for years.

“I think it would make sense for the court to take time for Rahimi to shake out,” said Shira Feldman, director of constitutional litigation at the gun violence prevention group Brady United. “Rahimi made really important clarifications to the Bruen test.”

Those following the issue will be watching challenges in Illinois and Delaware, both of which lie in circuits without a sharp liberal bent. The 9th U.S. Circuit Court of Appeals is also expected to rule this year on the case that started before Judge Benitez in California. And there is a chance, however small, that the Supreme Court will decide to review last week’s ruling on the Maryland assault weapons ban.

Most observers, however, expect the court to leave the question alone — at least for now.

“I don’t think this is something that’s going to be taken up this year,” said Oliva, the NSSF spokesman. “But these things just continue to circle the drain in the lower courts ad nauseam. Eventually, the Supreme Court is going to look at one of these that percolates up to their level.”