The Supreme Court has denied a request by the National Association of Gun Rights and an Illinois gun owner to halt enforcement of the state’s ban on the sale of modern sporting rifles and possession of “large capacity” magazines, issuing a brief statement to that effect with no noted dissents from any of the conservative justices on the bench.
The brief order in Bevis v. Naperville provides no explanation for the decision, though it does mention that Justice Amy Coney Barrett, who received the request from NAGR and its attorneys referred the request to the full Court for its consideration.
This is definitely a disappointing development, though not entirely unexpected. The request for an emergency injunction came as the Seventh Circuit Court of Appeals is considering multiple challenges to the state’s ban, including four cases heard by U.S. District Judge Stephen McGlynn, who did grant an injunction late last month that was stayed by an order from Seventh Circuit Judge Frank Easterbrook less than a week later. Those cases are still pending a full hearing on a request for an injunction along with Bevis v. Naperville, which is on a separate track in the Seventh Circuit.
As Second Amendment attorney Kostas Moros noted on Twitter, today’s decision isn’t entirely unexpected, particularly with the Seventh Circuit expediting these cases.
Not shocking after the 7th circuit issued a fast briefing schedule. pic.twitter.com/osX0MZqK0j
— Kostas Moros (@MorosKostas) May 17, 2023
Not shocking, but still disappointing, especially given the specious reasoning deployed by the state to defend its ban. As attorney and Second Amendment scholar Stephen Halbrook recently opined, Illinois’ argument flies in the face of the Heller and Bruen decisions.
While granting the emergency application in an interlocutory appeal of this type would be unusual, there are compelling reasons to do so here, as perhaps explained best in the amicus brief filed by Paul Clement and Erin Murphy on behalf of the National Shooting Sports Foundation (NSSF). As they note, there were only six states with bans last year when New York State Rifle & Pistol Ass’n v. Bruen was decided, and now there are ten. “Instead of treating Bruen as an occasion to reconsider existing restrictions on constitutional rights of law-abiding citizens, they have enacted new ‘assault weapon’ and/or ‘large-capacity magazine’ bans, with more still on the way.” Quoting phrases from Bruen, they argue:
Rifles, pistols, and shotguns plainly “constitute bearable arms”—i.e., “instruments that facilitate armed self-defense,” …—no matter what kind of grip, stock, ammunition feeding device, or other features they may have. The right to keep and bear them is thus “presumptively protect[ed]” by the Constitution. In breezily concluding that the firearms Illinois has banned are not even “Arms” covered by the plain text of the Second Amendment, the district court in this case inexplicably ignored the test that Bruen articulated, and instead simply declared that “[t]he text of the Second Amendment is limited to only certain arms.”
This is a very simple, straightforward case. Going back to basics, the Court held in District of Columbia v. Heller (2008) that arms that are “in common use” or that are “typically possessed by law-abiding citizens for lawful purposes” are protected by the Second Amendment and may not be banned. As the record reflects, there are over 24 million rifles of the types that are banned in the hands of American citizens. Even the State’s brief admits that there are millions of gun owners who possess semiautomatic firearms of the sort banned by Illinois.
This won’t be the last opportunity for the Court to weigh in, nor is it a slam dunk victory that assures Illinois’ ban will ultimately be upheld by the Court. Intervention by SCOTUS at such an early stage would have been fairly extraordinary, as Halbrook acknowledges, but given the fundamental rights at stake I think it still would have been merited. Unfortunately a majority of the Court disagrees and for now Illinois residents are still subjected to an ongoing deprivation of their Second Amendment rights.