Since the U.S. Supreme Court in 2008 ruled individuals have the right to own a gun, no fewer than four federal courts of appeals have concluded that right does not include military-style weapons such as the AR-15 semi-automatic rifle believed to be used by Nikolas Cruz to murder 17 people last February at a Florida high school.
Just last November, the Supreme Court rejected an appeal from the NRA and other conservatives to review a decision by a federal appeals court in Virginia, which upheld a Maryland law banning the production and sale of semi-automatic weapons.
Two years earlier, the justices let stand a ruling by a federal appeals court in Illinois that approved a ban by the Chicago suburb of Highland Park of semi-automatic assault weapons and large-capacity magazines.
Although the 2008 case — District of Columbia v. Heller — struck down a ban on ownership of handguns, the late Supreme Court Justice Antonin Scalia made clear in his landmark opinion that “the right secured by the Second Amendment is not unlimited.”
“Heller did not establish an absolute right to own any weapon for any reason,” said Eric Ruben, an adjunct professor of law at New York University and a fellow at the Brennan Center for Justice. “And in this sense the Second Amendment is not all that different from other amendments.’’
Julian Davis Mortenson, a professor of law at the University of Michigan, said, “Lawyers can argue anything, but I don’t think there is a very good argument that those weapons would be covered by Heller.”
But conservative defenders of the Second Amendment such as Rep. Jim Jordan, R-Urbana, insist the exact opposite is true. Jordan said it would “would be unconstitutional … to ban semi-automatic weapons.”
“What we’re talking about are firearms,” Jordan said. “We’re talking about the right to bear arms. And you’ve got to remember what the Second Amendment is about. It’s about liberty. It’s about freedom. It’s about protecting you, yourself, your property rights and your family from people who want to do you harm and from the federal government.”
The intense debate revolves around the meaning of the Second Amendment which reads: “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.”
To gun-control advocates, the key clause is the first; to gun-control opponents of gun control, the second clause is the one that counts.
In a unanimous opinion in 1939, the Supreme Court upheld a 1934 federal law which imposed a heavy tax on the sale of machine guns or sawed-off shotguns used by gangsters.
Writing for the court, Justice James McReynolds ruled “in the absence of any evidence” demonstrating that a shotgun with a short barrel “has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”
In 2008 in Heller, however, Justice Scalia scrapped that precedent when he and four other justices ruled the framers meant an individual had the right to own at the very least a handgun.
In a major victory for the NRA, Scalia wrote the court’s majority “read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”
Yet Scalia also wrote “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” evening making a reference to M-16 rifles “that are most useful in military service.”
At least four lower courts have focused on what Mortenson called “a pretty classic example of language” by the justices “that sends a strong signal.”
Last year the 4th U.S. Circuit Court of Appeals voted 10-4 to uphold a 2013 Maryland law which banned the sale of a broad range of semi-automatic weapons.
Writing for the majority, Judge Robert B. King specifically cited Scalia’s reference to M-16 rifles, adding “we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.”
The NRA and other gun advocates urged the Supreme Court to reverse the ruling, contending that Maryland “has struck at the heart of the Second Amendment by banning a large category of arms that are in common use in the United States.” But the justices allowed the lower court decision to stand.
To Jordan, the NRA is correct. “I think it’s real clear and for the courts to say we’re going to say the Second Amendment restricts your ability to have semi-automatic weapons - it’s just wrong,” Jordan said.
Jessica Wehrman of the Washington Bureau contributed to this story.
Key gun rulings
1939: The U.S. Supreme Court upholds a 1934 federal law approved following the St. Valentine’s Day massacre which imposed a tax on the sale of machine guns or sawed-off shotguns used by gangsters.
2008: The Supreme Court holds that the Second Amendment protects an individual’s right to possess a handgun, but in his majority opinion, Justice Antonin Scalia states that the right secured by the Second Amendment “is not unlimited.”
2015: The Supreme Court lets stand a ruling by a federal appeals court in Illinois that approved a ban by the Chicago suburb of Highland Park of semi-automatic assault weapons and large-capacity magazines.
2017: The 4th U.S. Circuit Court of Appeals in Virginia votes 10-4 to uphold a 2013 Maryland law that banned the sale of a broad range of semi-automatic weapons.
2017: The Supreme Court rejects an appeal by the NRA and other conservative groups to review the Virginia court decision in the Maryland case.
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