Supreme Court Rejects Hardware Cases, Lets Record of Anti-gun Defiance Build

Last week, after they were re-listed for conference 15 times, the U.S. Supreme Court finally denied petitions for review on two major Second Amendment cases, with just one vote shy of the four needed for review. 

Snope v. Brown was an appeal of a case upholding Maryland’s ban on semi-automatic rifles such as the AR-15. NRA had filed an amicus brief in the case. The Fourth Circuit denied a Second Amendment challenge to the ban by, among other things, holding that such rifles are not “arms” under the Second Amendment.

The second petition denied was Ocean State Tactical v. Rhode Island, an appeal pertaining to Rhode Island’s magazine capacity limit. The Court of Appeals for the First Circuit left the law in place by erroneously holding that the ban on standard capacity magazines does not put a “meaningful burden” on the right to keep and bear arms for self-defense and additionally does not violate the Bruen test under a historical tradition of regulating firearms.

These two challenges on critical Second Amendment issues expended considerable time and resources on their way to the U.S. Supreme Court, and the Snope case, in particular, appeared very well suited for review.

So, what is the court waiting for to take up these questions?

Apparently, more opinions. It is a disappointing outcome and approach, but NRA continues to be up to the legal task of continuing the work of challenging similar gun and magazine bans in California, Delaware, Illinois, New Jersey, Oregon, and Washington. As litigation continues, so the thinking goes, the issues will be more thoroughly vetted and ripe for Supreme Court consideration.

Justice Thomas’ dissent followed closely with his previous dissents in these types of cases, stating:

I would not wait to decide whether the government can ban the most popular rifle in America. That question is of critical importance to tens of millions of law-abiding AR–15 owners throughout the country. We have avoided deciding it for a full decade …

While Justices Alito and Gorsuch indicated they would have granted review in both cases, Justice Kavanaugh issued a statement “respecting the denial of certiorari” that specifically addressed AR-15s and implied the Court is likely to take up a similar case in the future. “Opinions from other Courts of Appeals should assist this Court’s ultimate decision making on the AR–15 issue,” Kavanaugh wrote. “Additional petitions for certiorari will likely be before this Court shortly and, in my view, this Court should and presumably will address the AR–15 issue soon, in the next Term or two.”

Whether any of the pending cases are likely to substantially illuminate the issue in ways not seen to date is certainly a debatable proposition. But, as our article this week on the Court’s unanimous decision in Smith & Wesson Brands v. Estados Unidos Mexicanos demonstrates, there is a limit to the foolishness the justices will tolerate. It’s hard to imagine, moreover, anything more foolish a judicial decision claiming America’s most popular rifle is somehow not a Second Amendment arm.