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A new Supreme Court case seeks to legalize assault weapons in all 50 states

A case on the Court’s “shadow docket” could strike down state and local bans on AR-15s and similar weapons.

The Supreme Court could hand down a decision any day now in National Association for Gun Rights v. City of Naperville, a case that could legalize assault weapons and high-capacity magazines in all 50 states.

The case challenges a Naperville, Illinois, ordinance and a similar Illinois state law, both of which ban assault weapons, which the state law defines to include certain semiautomatic rifles such as AR-15s and AK-47s. Additionally, the state law prohibits the sale of a “large capacity ammunition feeding device,” which the statute defines as long gun magazines that hold more than 10 rounds of ammunition, or handgun magazines that hold more than 15 bullets.

The plaintiffs, which include a gun shop owner and a gun rights group, claim the two statutes violate the Second Amendment.

Should the Supreme Court accept that argument and overturn these laws, it would have sweeping implications for the entire country. That decision would need to be followed throughout the entire nation — which would most likely mean that neither any state nor the US Congress could ban assault rifles or high-capacity magazines.

And there is good reason to fear that this Court could, at the very least, decide to make semiautomatic assault rifles legal throughout the United States. In 2011, a federal appeals court upheld the District of Columbia’s ban on assault weapons — over the dissent of an up-and-coming right-wing judge named Brett Kavanaugh.

Although the Supreme Court’s decision in District of Columbia v. Heller (2008) permitted lawmakers to ban “dangerous and unusual weapons,” Kavanaugh read that decision narrowly in his 2011 opinion. He reasoned that semiautomatic rifles are neither more dangerous than lawful weapons such as handguns, nor are they especially unusual — among other things, he argued that at the time of his opinion, “about two million semi-automatic AR-15 rifles have been manufactured.”

Flash forward a dozen years, and Kavanaugh is now the median justice on a Supreme Court dominated by Republican appointees. So if he still believes semiautomatic rifles aren’t particularly “dangerous and unusual,” he is well-positioned to turn the opinion he wrote in 2011 into law.

That said, there is some uncertainty about whether the Court will issue a sweeping pronouncement right away on the legality of assault rifles. The Naperville case arises on the Court’s “shadow docket,” a mix of emergency motions and other expedited matters that the Court sometimes decides without full briefing or oral argument.

Shortly after Justice Amy Coney Barrett’s appointment gave Republican appointees a supermajority on the Supreme Court, the Court started handing down transformative — occasionally revolutionary — decisions on its shadow docket. In a fall 2021 concurring opinion, however, Barrett expressed concern that her Court was deciding too many cases on its shadow docket, warning that litigants were using the shadow docket to get the Supreme Court to opine on cases it ordinarily would not hear, and “on a short fuse without benefit of full briefing and oral argument.”

Notably, Barrett’s opinion in that 2021 case, Does v. Mills, was joined by Kavanaugh.

So there is a real chance that the Court will delay deciding the questions raised by Naperville until it or a similar case has been fully litigated in the lower courts and the case reaches the justices through the ordinary, more time-consuming process that the Court uses to hear most major cases.

But even if the Court does decide to push off the Naperville case until another day, when that day comes there will likely be five votes on this Supreme Court to legalize assault weapons throughout the country.

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