Clarence Thomas signals he's coming for assault weapons bans: analysis

The Supreme Court just had a significant term of decisions on gun-related cases, from the legality of "bump stocks" to the Second Amendment rights of accused domestic abusers. But far-right Justice Clarence Thomas would like to go further, taking aim at state bans on assault weapons.

According to Newsweek, the Supreme Court declined to take up a case in Illinois reviewing whether their assault weapon ban is constitutional — but only because they want to wait and see how the lower courts resolve the issue. Thomas agreed with this — but made clear in his own writing that if he doesn't like how the court rules, he will push the court to review it.

He also left little doubt in his comments about how he would rule.

"The Seventh Circuit's decision illustrates why this Court must provide more guidance on which weapons the Second Amendment covers," wrote Thomas. "By contorting what little guidance our precedents provide, the Seventh Circuit concluded that the Second Amendment does not protect 'militaristic' weapons ... It then tautologically defined 'militaristic' weapons as those 'that may be reserved for military use.'"

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"Assault weapons," which were previously banned federally in the 1990s before Congress allowed the law to expire, don't have a formal definition, but the Brady Center and the handful of states with bans on the books generally define assault weapons as semi-automatic firearms with features originally designed for military use.

These are distinct from "assault rifles," which generally refer to firearms that can switch between semi-automatic and fully automatic fire; these are heavily restricted under federal law.

Since former President Donald Trump secured a six-member right-wing majority, the Supreme Court has aggressively worked to tear down gun laws, one of the most prominent cases being the landmark Bruen decision in 2022, authored by Thomas, that decreed all gun laws must have a historic analogue in the 18th and 19th centuries.

This ruling caused chaos in lower courts as judges struggled to interpret this standard; in the Rahimi decision this term, where a federal law prohibiting people under domestic violence restraining orders from possessing firearms, the court appeared to pull back from this standard slightly, over Thomas' objections, but still didn't articulate a clear standard for when a gun law is considered consistent with historical traditions.