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Assault Weapon Bans, Red Flag Laws Are Next Fights on Gun Rights

June 23, 2022, 4:05 PM

The US Supreme Court’s decision striking down New York’s strict limits on the right to carry a concealed gun in public is likely to fuel a wave of legal challenges against assault weapon bans, age restrictions, and laws blocking people at risk to themselves or others from keeping firearms.

The high court appears to have shifted the balancing test for gun laws that weighed public safety interests against constitutional firearms protections in ruling that most people have a constitutional right to carry a gun outside the home for self-defense. The decision follows recent mass shootings at an elementary school in Uvalde, Texas, and a grocery store in Buffalo.

While the Supreme Court only ruled Thursday on New York’s law, the New York State Rifle & Pistol Association had a broader goal in bringing the litigation, Kris Brown, president of Brady, a nonprofit dedicated to reducing gun violence, said in an interview ahead of the court’s ruling. Brady filed a friend-of-the-court brief in the case supporting New York’s law.

“It’s to use this case to litigate every other public safety law,” she said of the National Rifle Association affiliate.

Gun Owners of America, a group that characterizes itself as a no compromise gun lobby, said it’s hoping to see the Supreme Court take up, and gun rights groups successfully challenge, state bans on assault weapons, age restrictions, and red flag laws. The group filed a friend-of-the court brief in the case supporting the New York State Rifle & Pistol Association.

“The Second Amendment protects all bearable arms from infringement,” Aidan Johnston, the federal affairs director of the group, said ahead of the court’s decision. “That means no regulation, that means no background checks, that means no government intervention whatsoever as far as the keeping or bearing of that arm is concerned.”

Semiautomatic Rifles

The Supreme Court is expected to say in the coming days whether it will take up a constitutional challenge to Maryland’s ban on semiautomatic rifles, which the state considers assault weapons.

The Firearms Policy Coalition argues, alongside two gun rights advocacy groups and a gun shop, that Maryland’s ban violates the Second Amendment and the court’s 2008 decision in District of Columbia v. Heller. In that case, the court held and later affirmed that the Second Amendment protects an individual right to possess a firearm in the home for self-defense.

Heller says that the Second Amendment protects arms that are commonly used by law-abiding citizens,” Robert Cottrol, a professor at George Washington University Law School who supports Second Amendment protections, said ahead of the ruling. “The assault weapons would definitely qualify under that criteria.”

Assault weapons are often defined as semiautomatic rifles with a detachable magazine that can fire multiple rounds rapidly and Cottrol argues that description fits the M1 carbine, which was used in World War II and sold by the Army to the American public.

“If we go back to the Heller definition of ‘commonly used by law abiding people,’ this sort of thing has been in the public’s hands almost all of the 20th century,” he said.

In addition to Maryland, six states have laws banning assault weapons, according to the Giffords Law Center to Prevent Gun Violence.

After the Supreme Court’s ruling in Heller, several suits challenged a ban on handguns in Chicago and a Chicago suburb. The litigation made it to the Supreme Court in 2010 in McDonald v. Chicago in which the court held the Second Amendment also protects an individual right to own a gun against state infringement.

The New York State Rifle & Pistol Association’s challenge to New York’s conceal carry law is the first major Supreme Court ruling on gun rights since McDonald.

Compelling Interest

In a dissenting opinion, Justice Stephen Breyer said the court relied nearly exclusively on history and refused to consider whether New York has a compelling interest in regulating the concealed carriage of handguns or whether New York’s law is narrowly tailored to achieve that interest.

But in a concurring opinion that Chief Justice John Roberts joined, Justice Brett Kavanaugh reiterated what the court said in Heller and McDonald : That “the Second Amendment is neither a regulatory straight jacket nor a regulatory blank check.”

Quoting Heller, Kavanaugh said that “properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations.”

The comments are significant because gun advocates will need at least one of their votes to overturn additional gun restrictions.

An attorney for the New York State Rifle & Pistol Association didn’t immediately respond to a request for comment. In a statement ahead of the court’s decision, NRA spokesperson Amy Hunter said the organization “will continue to fight all laws that prevent law-abiding Americans from defending themselves and their families with the firearm of their choosing.”

Extreme risk

Cases have already been brought in lower federal courts challenging whether states can constitutionally enact age restrictions and red flag laws. Also known as extreme risk laws, red flag laws allow a family member or law enforcement to seek a court order temporarily depriving someone of a gun if they’re a potential threat to themselves or others.

The US Court of Appeals for the Ninth Circuit on May 11 ruled California’s age restrictions on the sale of semiautomatic rifles to young adults are likely unconstitutional. The appeals court said the trial court had erred by not blocking the state law, which bans these guns from being sold to anyone between the ages of 18 and 21.

The Third Circuit on May 13 affirmed a trial court’s decision to toss a constitutional challenge to New Jersey’s red-flag law that was brought by David Greco after his guns and ammunition were seized by the state’s Office of Homeland Security and Preparedness in 2019.

Because Greco had displayed a pattern of anti-Semitic social media activity and had contacted the accused Pittsburgh synagogue shooter before that mass shooting in October 2018, a court gave state officials the search warrant and order they asked for to temporarily seize his weapons under the law.

Since a state court hearing is still pending on whether to make that temporary order final, the Third Circuit agreed the case should be dismissed. The appeals court said federal courts can’t interfere with ongoing state-court proceedings and noted nothing in the ruling prevents Greco from pursuing his constitutional challenges in state court.

Johnston argues there are often charges that can be brought against people like Greco to prevent an attack they may be preparing to carry out on the public.

“Just focusing on the gun doesn’t do enough,” he said. “The problem with focusing on the gun is it still leaves an evil, hateful, and mentally ill person in society to find another tool.”

Though gun-control advocates see the court’s decision on New York’s conceal carry law as unfavorable, they say it doesn’t mean all or more gun laws will be ruled unconstitutional.

“We know from social science that gun safety laws save lives,” said Eric Tirschwell, executive director and chief litigation counsel of Everytown for Gun Safety, which advocates for gun control measures and filed a friend-of-the-court brief in support of New York’s law. “At the end of the day, we believe that the broad range of gun safety laws should be upheld and will be upheld.”

Bloomberg Law is operated by entities controlled by Michael Bloomberg, who serves as a member of Everytown for Gun Safety’s advisory board.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editor responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com