WASHINGTON — (CNN) Days after the worst mass shooting in the United States, the Supreme Court is poised to act on two cases highlighting the raging debate over what types of guns and ammunition may be banned and who should have the right to possess firearms.
Justices will meet behind closed doors this week to determine whether or not to take up a constitutional challenge to a Connecticut ban of certain semi-automatic assault weapons and large capacity magazines.
The court is also poised to rule by the end of the month on the case of a Maine man who says that his prior misdemeanor under state law for domestic violence should not have caused him to lose his right to possess a firearm under federal law.
The cases come as gun control is front-and-center in the national conversation and presidential race. Hillary Clinton has called for expanding bans on some semi-automatic weapons following the Orlando and San Bernardino terrorist attacks. Donald Trump has been endorsed by the National Rifle Association and railed against any new limits on gun ownership.
Connecticut’s law was passed in the wake of the December 2012 shooting at Sandy Hook Elementary School in Newtown. Twenty first graders and six educators died that day, which prompted lawmakers in Hartford to expand its limits on certain types of firearms.
A lower court upheld the law against a challenge from gun rights groups, among others, who say the law went too far. They are now asking the Supreme Court to step in, a decision that reflects the conflict between some states moving for tighter gun laws and gun rights groups who say the laws do nothing to stop massacres.
Should four justices agree to hear the case, oral arguments would be held in the 2016-2017 term.
Hours after the Orlando shooting that left 49 dead and over 50 injured, Scott Wilson, president of the Connecticut Defense League, a pro-gun rights group opposing the Connecticut law, posted a statement on his group’s website linking the two events.
He said that while his group expressed compassion for the “victims and families of this horrific act,” he thought the laws passed by Connecticut politicians and others “would only impact persons who actually obey the laws of our society.” The Orlando shooter, he said, “broke numerous laws.”
“For the proponents of gun control, these incidents are the gifts that allow them to renew the push for their failed agenda,” Wilson said.
Jonathan E. Lowy, the director of the Legal Action Project at the Brady Center to Prevent Gun Violence rejects Wilson’s argument.
“The gun lobby continues to argue that the problem in America is that it is too difficult for people to get guns, ” he said. “And that is an outrageous position, particularly in the wake of this mass killing,” he said.
It’s been eight years since a 5-4 Supreme Court held in District of Columbia v Heller that the Second Amendment protects an individual’s right to bear arms. Except for a follow up to that case in 2010, the court has not substantially revisited the Second Amendment. The court’s decision to stay out has emboldened gun control activists and infuriated some gun rights supporters.
The late Justice Antonin Scalia wrote the Heller decision and it is perhaps his most lasting legacy. GOP presidential candidates, most notably Ted Cruz, cited the case as an example of the need for a Republican in the White House and conservative jurists, especially after Scalia’s death in February.
But while critics feared the opinion might invite lower courts across the country to overturn regulations, that largely never occurred as the lower courts sometimes pointed to Scalia’s own words: “the right secured by the Second Amendment is not unlimited.”
“Since the Supreme Court decision in Heller, virtually all lower courts have recognized that states and local governments have the authority and arguably the responsibility to enact reasonable laws to keep dangerous guns out of the hands of dangerous people,” said Lowy.
In court papers, Wilson’s lawyers say that Heller has caused “conflict and confusion” in the lower courts and urge the justices to step in now “to restore clarity to the body of Second Amendment law.”
Scalia himself –in December 2015 — joined a dissent written by Justice Clarence Thomas when the court declined to take up a case concerning an assault weapons law in a Chicago suburb.
Thomas and Scalia wanted the court to weigh in and clarify Heller, saying that appellate courts have upheld “categorical bans on firearms that millions of Americans commonly own for lawful purposes.”
As with the Connecticut statute, the Highland Park, Illinois, law looks at the sale and of certain types of semi-automatic firearms and high-capacity magazines, in this case semi-automatic firearms with the capacity to accept more than 10 rounds of ammunition.
That the court didn’t take up the Illinois case does suggest that it won’t weight in on the Connecticut law, perhaps allowing the issue to percolate further in the lower courts.
Adam Winkler, a professor of Law at UCLA School of Law and author of “Gunfight: The Battle Over the Right to Bear Arms in America,” said the debate “will continue to spiral towards the extremes until there is a significant shift in Americans’ attitudes about guns.”
“It is hard to find middle ground among people with such starkly different views of how to curb violence,” he said.
Domestic violence and gun ownership
In a very different type of challenge, justices by the end of June are expected to hand down an opinion in an appeal from a Maine resident who says he should not have been stripped of his ability to possess a firearm despite a prior domestic violence charge in state court.
Stephen Voisine pled guilty to a misdemeanor assault charge in 2004 against a girlfriend. Five years later, he was investigated for shooting a bald eagle and as part of the investigation he turned over a firearm to authorities.
After reviewing his criminal record, Voisine was then charged with unlawful possession of a firearm pursuant to a federal law which makes it unlawful for a person who has been convicted of a “misdemeanor crime of domestic violence” to possess a firearm or ammunition.
Lawyers for Voisine argued that his misdemeanor offense did not rise to the level to trigger the federal law.
The justices agreed to take the case to interpret the reach of a federal statute. But Thomas was interested in the second amendment implications. The case was argued soon after Scalia’s death and Thomas broke in to ask a series of questions for the first time in 10 years during oral arguments.
He asked the lawyer for the government if she could give him another example where a “misdemeanor violation suspends a constitutional right?”
As the audience sat stunned to hear his voice at oral arguments the lawyer Ilana H. EIsenstein and Thomas went back and forth on the issue.
Finally, Eisenstein said that she understood Thomas’ concern “that this is a potential infringement of an individual’s second amendment rights ” but she said, “Congress has identified a compelling purpose and has found a reasonable means of achieving that purpose.”
The three-judge panel of the 1st U.S. Circuit Court of Appeals ruled against Voisine and another defendant, holding that the “question before us is a narrow one.”
Congress recognized that “guns and domestic violence are a lethal combination,” the panel added.
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