Not as momentous as last Thursday, to be sure, but a big day nonetheless. The Court will be releasing orders from last week’s conference, and will likely take action on four Second Amendment cases that have been pending in conference for several months awaiting the outcome of the Bruen case. Justices could accept one or more of the cases or remand them all back to the lower courts for a rehearing based on the “text, history, and tradition” test laid out by Justice Clarence Thomas in his majority opinion, so we’re likely to soon learn just how eager justices are to keep up their newfound interest in Second Amendment jurisprudence.
The cases that are most likely to be granted cert by the Court, in my opinion, are the challenges to California and New Jersey’s ban on so-called large capacity magazines. The laws of both states are substantially similar, with those who lawfully purchased the magazines before the ban went into effect compelled to permanently modify them to comply with state law, destroy them, turn them over to police, or remove them from their possession. Coincidentally (or not), attorney Paul Clement, who represented the plaintiffs in NYSPRA v. Bruen, is also the counsel of record in Association of New Jersey Rifle & Pistol Clubs v. Plotkin and Duncan v. Bonta. Clement also left his law firm last Thursday after he and his colleague Erin Murphy were told that they either had to step down or give their 2A clients the boot. Clement and Murphy chose to stick with their clients, and though the justices probably decided long before last Thursday what they would do with the mag ban cases, there’s a part of me that hopes the justices will recognize and reward the pair for choosing the law over a law office.
Sentimentality isn’t the big reason why I think these are the cases most ripe for review, however. Either case (or both, if the Court wants to combine the challenges given the similarities of the laws in question) would provide a great vehicle for the justices to flesh out the “text, history, and tradition” test. California’s reply brief to the cert petition, for example, argues that “the firearms commonly used and available at the time of the Founding were muskets or handguns that required reloading of a ball, powder, and primer after every shot,” but as the Court has repeatedly made clear in Heller, McDonald, Caetano, and now Bruen, the Second Amendment doesn’t just protect the arms that were in common use at the time of the ratification of the Second Amendment. Rather, the Second Amendment protects arms that are in common use, and today that would most certainly include the more than 100-million 10+ round magazines lawfully owned by American gun owners.
However, this isn’t the only case pending before the Court that involves bans on arms in common use. There’s also Bianchi v. Frosh; a case out of the Fourth Circuit challenging Maryland’s ban on so-called assault weapons. Maryland Attorney General Brian Frosh contends that the state’s ban on modern sporting rifles is in line with the Second Amendment, citing (and I think abusing) language from the Heller decision.
Although “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms,” the Court recognized that the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,” means that jurisdictions may ban certain arms, including “weapons that are most useful in military service—M-16s and the like.”
Consistent with this Court’s guidance, the State of Maryland, like five other States, has prohibited certain highly dangerous, military-style assault rifles. These States responded to a wave of mass public killings where the assailants used these weapons. The States found that the compelling interest in public safety justified this narrowly targeted measure. In Kolbe v. Hogan, the en banc Fourth Circuit rejected a constitutional challenge to Maryland’s assault-rifle ban.
The court explained that the ban accords with the Second Amendment as interpreted in Heller and is justified to achieve Maryland’s compelling interest in protecting public safety while not impairing residents’ ability to defend themselves with an array of weapons, including handguns. The Fourth Circuit’s decision accords with rulings of the First, Second, Seventh, and D.C. Circuits, and no circuit has ruled to the contrary. The Fourth Circuit’s approach also aligns with the analytical framework used by every circuit in addressing Second Amendment claims under Heller. Reflecting that consistency in outcome and approach, this Court has denied certiorari in every challenge to assault-rifle bans—most recently in 2020.
As Justice Thomas made clear on Thursday, interest-balancing tests are not a proper reading of the Heller decision, and instead a “text, history, and tradition” test must be used to determine whether or not a particular gun control law is constitutionally sound. There is no historical record suggesting that bans on commonly-owned rifles (or even handguns) were the norm at any point in U.S. history, and Frosh never attempts to argue that there was. His entire rationale is that AR-15s are both dangerous and unusual, and since the Fourth Circuit Court of Appeals ruled that they’re “like” fully-automatic machine guns the Court should simply adopt the point of view that an arm in common use for a variety of lawful purposes isn’t actually protected by the Second Amendment after all.
The only reason I think the Court may be less inclined to take this case is the politics, quite honestly. After delivering blockbuster opinions on the right to bear arms and overturning Roe v. Wade, I’m not sure that there are four justices ready to take up bans on “assault weapons” next term. It would, however, be a natural fit to pair this case with one or both of the magazine ban cases, and I do think there’s a real possibility of the Court granting cert here as well.
That leaves Young v. Hawaii; a challenge to that state’s “may issue” laws regarding permits to openly carry a firearm. While the Ninth Circuit’s opinion upholding the law was egregiously awful, the issue has also now been largely addressed by the Court in the Bruen decision, and I suspect that the Court will simply remand this case back to the lower courts for a re-do based on the language in Bruen.
As I said, it’s also entirely possible that the Court simply remands all of these cases back to the lower courts, but I’m keeping my fingers crossed that we get one or more grants when the latest orders in conference are released Monday morning. The odds are that these cases are going to end up back before Court at some point, so the justices (and gun owners) would be much better off delivering a ruling sooner rather than later.