Is SCOTUS ready to step in on an "assault weapons" ban?

AP Photo/Patrick Semansky, File

Since the Bruen decision was delivered last June, the Supreme Court has been largely content to let lower courts wrestle with the opinion and what it means for the future of gun control laws like a ban on so-called assault weapons or even the new concealed carry restrictions put in place by the state of New York after its “may issue” regime was struck down by SCOTUS in Bruen. Now the Court is being asked to weigh in on an “assault weapons” ban imposed by the city of Naperville, Illinois, and Second Amendment advocates are hoping that at least four justices are ready and willing to take up the request for an injunction.

The National Association for Gun Rights is hoping the Supreme Court will do what the Seventh Circuit did not; put a halt to Naperville’s gun ban while the case plays out in court. On Monday afternoon, Supreme Court Justice Amy Coney Barrett directed Naperville officials to respond to NAGR’s request no later than noon on May 8th. Coincidentally (or not), that’s the same day that U.S. District Judge Stephen McGlynn has told the plaintiffs in the challenge to the statewide ban on “assault weapons” to reply to Illinois’ request to stay his injunction against the “assault weapons” and “large capacity” magazine ban, which was handed down last week.

The National Association for Gun Rights (NAGR), in conjunction with the National Foundation for Gun Rights (NFGR), says the law conflicts with the high court’s NYSRPA v. Bruen decision last year, which ruled gun laws must align with constitutional text and history.

“We’re thankful the Supreme Court is taking the Second Amendment rights of Illinoisans seriously,” Dudley Brown, President of NAGR, told the Washington Examiner. “Any ban on so-called ‘assault weapons’ is plainly unconstitutional, and now it is on the city of Naperville to explain the legal justification for their ban. Of course, there isn’t any. The bans were ludicrous from the start, and if Illinois had any sense, they would wave the white flag now and save us all some time.”

Well, that’s not gonna happen. The bigger question is whether the Supreme Court will step in now or wait for another case involving a ban on so-called assault weapons to reach its doorstep.

While I do expect the Court to take up bans on modern sporting rifles, NAGR’s request is still somewhat of a longshot in my opinion. Like Antonyuk v. Nigrelli and Gazzola v. Hochul (New York-based cases which the Supreme Court turned away back in January), the request for intervention in Bevis v. Naperville is coming at a very early stage in the litigation, and justices may very well want to see how the Seventh Circuit deals with “assault weapons” bans in a post-Bruen environment first rather than jump in right away. The Seventh Circuit kept Naperville’s ban in place, but since then Judge McGlynn has imposed a statewide injunction on the Illinois law banning the sale of “assault weapons” and “large capacity” magazines, and the issue will be coming back to the Seventh Circuit in the very near future.

The Seventh Circuit isn’t the only appellate court with a gun ban case on its calendar either. In the Ninth Circuit a challenge was just filed against Washington State’s new “assault weapons” ban, and oral arguments have already been held in Miller v. Bonta; a lawsuit taking on California’s “assault weapons” ban that’s pending in the court of U.S. District Judge Roger Benitez. The Fourth Circuit, meanwhile, has been holding on to Bianchi v. Brown since last December, and an opinion on the constitutionality of Maryland’s “assault weapons” ban could come at any time.

Those pending cases are all a little further along in the legal process than Bevis v. Naperville, and I wouldn’t be surprised if SCOTUS ends up declining to intervene while they wait to see how the lower courts are addressing these types of bans. That certainly wouldn’t be my preference, but the Court works on its own timeline, much to the frustration of gun owners and Second Amendment advocates who’ve not-so-patiently waited for years for SCOTUS to formally acknowledge what we all know to be true; commonly-owned semi-automatic rifles lawfully possessed by millions of Americans for self-defense, hunting, recreational shooting, and just in case the fecal matter hits the oscillating blades are indeed protected by the text, history, and tradition of the Second Amendment and the right to keep and bear arms.

Still, I don’t think we’ll have to wait too long for the Supreme Court to take up the issue, even if justices decline to intervene in any requests for preliminary injunctions or temporary restraining orders. I’m of the opinion that the justices are holding off until a few more lower courts have issued decisions of their own, and Bianchi is on pace to be the first gun ban case to be fully briefed, argued, and decided by an appellate court since the Bruen decision and its “text, history, and tradition” test was outlined last year.

I’m actually surprised that we haven’t seen anything from the Fourth Circuit in Bianchi, especially since it seemed like the three-judge panel who heard oral arguments late last year was inclined to deliver an opinion on the ban rather than kick the case back down to district court for a new trial in light of the Bruen decision. My guess is that Bianchi will be the case that grabs the Court’s attention, and while I’ll be disappointed if the Supreme Court turns away Bevis at this early stage, I don’t think it portends bad news for gun owners when an “assault weapons” ban case is finally heard by the nine justices.