CHARLESTON — West Virginia Attorney General J.B. McCuskey’s office is leading a coalition of 26 attorneys general asking the U.S. Supreme Court to hear a challenge of a District of Columbia ban on high-capacity magazine and assault weapons.
The brief challenges a D.C. District Court decision in Hanson et al. v. District of Columbia et al. that upheld the ban on magazines that hold more than 10 rounds of ammunition. The law prohibits the possession, sale or transfer of these magazines. The law also prohibits residents from keeping and bearing semiautomatic weapons such as AR-15 rifles.
The coalition argues the lower courts “have continued to use whatever means necessary to uphold laws that have prevented most citizens in those jurisdictions from exercising the right to bear arms.”
“Until the Supreme Court weighs in, cities will continue passing these far-reaching bans on guns and ammo — knowing that certain lower courts will continue to push the agenda to limit our Second Amendment rights,” McCuskey said in a press release. “This must be stopped and we are asking the Supreme Court to once and for all declare the legality of firearm magazines protected under the Second Amendment.”
The coalition argues the ban is unconstitutional because the country has no history or tradition of banning arms in common use for lawful purposes.
The question presented to the Supreme Court is whether the Second Amendment to the United States Constitution allows a categorical ban on arms that are indisputably common throughout the United States and overwhelmingly used for lawful purposes (generally) and self-defense (specifically).
“Sometimes, old habits die hard,” the brief states. “For too long, the Second Amendment went dormant, offering only limited rights in a narrow universe of cases in a way inconsistent with history. But in recent years, the court has recognized again that the amendment is a ‘fundamental’ preexisting right that is ‘deeply rooted in this nation’s history and tradition.’ …
“While this court has pushed for renewed respect toward the Second Amendment, things have played out differently below. Amici states have seen firsthand how courts across the country have struggled to ‘afford the Second Amendment the respect due [to] an enumerated constitutional right.’ And courts upholding local bans on so-called assault weapons and standard-capacity magazines (relabeled as large-capacity magazines) are especially prone to ‘contorting’ traditional constitutional principles and subordinating genuine Second Amendment interests.”
The states say that story repeats itself in this case.
“The majority below started on the right track, finding that ‘the Second Amendment’s plain text covers’ plus-ten magazines and ‘are in common use for self-defense today,’” the brief states. “But it still concluded that banning these weapons is consistent with our nation’s tradition of firearm ownership. In so deciding, the court below analogized the District’s plus-ten magazine ban to nineteenth-century restrictions on Bowie knives, a uniquely dangerous blade that came to be associated with dueling and frontier violence. The majority found this analogy appropriate because both sets of laws shared the ‘same [supposed] basic purpose.’”
The states argue that both laws were thought to “inhibit then unprecedentedly lethal criminal activity by restricting or banning weapons that are particularly susceptible to, and were widely used for, multiple homicides and mass injuries.”
“And while the majority below said that the plus-ten magazine ban was comparable to laws that addressed weapons capable of unprecedented lethality, it could only get there by limiting the Second Amendment solely to individual self-defense,” the states’ brief says. “Viewing the Second Amendment through the correct lens — that it protects the right to bear arms for community defense, too — the historical analogues the majority relied on below fail.
The decision here shows that analogies … are helpful only when courts have an underlying theory about how to identify the relevant similarity. Unfortunately, many courts still don’t grasp the underlying principles of the Second Amendment.”
The other AGs joining the amicus brief are from Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia and Wyoming.
United State Supreme Court case number 24-936