Certiorari

California is one of seven states that bans assault weapons, which are semi-automatic, military-style weapons with features that make them easy to conceal, and easy to fire multiple rounds of ammunition continuously. The National Rifle Association (NRA) is in the process of filing a series of lawsuits challenging the most recent assault weapon restrictions passed by the California Legislature in 2016 (AB 1135 and SB 880).  A petition for review currently pending in the U.S. Supreme Court is of high interest to Californians because it asks the Court to accept the same arguments made by the NRA in its constitutional challenge to California’s new assault weapons restrictions.

The petition currently pending at the U.S. Supreme Court requests that it accept review of the Fourth Circuit Court of Appeals’ en banc decision upholding Maryland’s assault weapons ban – Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc). Gun owners and dealers argue that because certain types of prohibited assault weapons, specifically the AR-15 and AK-47, are “popular” choices for self-defense, the Constitution’s Second Amendment prohibits states from banning them.

 

AR-15 Assault rifle

 

AK-47 Assault Rifle

 

 

 

 

 

The challengers ask the Court to interpret the Constitution to mean that “[t]he individual – and not the government – retains the right to choose from among common arms those that they believe will best protect their person, family, and home.”  Pet. For Writ of Cert. at 3.  This interpretation of the Constitution, if adopted by the Court, could dramatically restrict the power of California’s citizens, and the citizens of other states, through their legislatures, to limit the availability of weapons they determine to pose particular dangers of misuse.  These weapons include guns or accessories with rapid-fire or other assault features that have been commonly used in mass shootings, including the most recent Las Vegas tragedy.

The Court has discretion to accept or refuse review of lower court decisions. Since its two  decisions in 2008 and 2010 interpreting the Second Amendment to protect an individual’s right to possess a gun in the home for self-defense, the Court has not agreed to review challenges to gun restrictions. Only Justices Thomas and Gorsuch seem inclined to review and strike down gun restrictions in the short term, complaining in a dissent last term about the Court’s “treatment of the Second Amendment as a disfavored right.” Peruta v. California, 582 U.S. (2017).

The challengers in the pending case, Kolbe v. Hogan, filed their petition for review on July 21, 2017. West Virginia, joined by twenty other states, filed an amicus brief supporting the request for review. The State’s response is due on October 10, 2017. Once all the briefs are in, the Court will discuss the petition at a Friday conference and decide whether to grant review.

For more information on:

Assault weapon laws, federal and state: Law Center to Prevent Gun Violence – Assault Weapons

Gun laws generally, state by state: Reuters Gun laws in the US, state by state – interactive

A history of the AR-15 and AK-47: New York Times “Tools of Modern Terror” by C.J. Chivers

Want more information?  Check out our In Briefs.

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