2A Attorney Has All Fingers Crossed While SCOTUS Considers Taking a Gun Ban Case

Townhall Media

I'd give anything to be a fly on the wall during today's Supreme Court conference, where multiple challenges to "assault weapon" bans in Illinois and Maryland are being considered for acceptance by the nine justices. The closed-door conferences are not open for the public to watch the justices deliberate and debate the merits of granting cert, so we'll have to wait until Monday to learn what, if anything, they decided today. 


On today's Bearing Arms Cam & Co, California Rifle & Pistol Association president, and co-founder of the Second Amendment Law Center Chuck Michel sits down to game out some of the options available to the Court, and says he's keeping "all his fingers crossed" that there are at least four justices who are ready and willing to take up the issue of bans on commonly-owned firearms. 

Michel says there's a procedural reason why the Court may decline to hear these cases: all of them have yet to be decided on the merits in the courts of appeals. The justices may want to let these lawsuits percolate in the lower courts in order to flesh out the arguments on both sides. Over the past two years we've already seen the Court reject emergency appeals of the Illinois gun ban case as well as New York's Bruen response bill, and as frustrating as it may be, there's a distinct possibility that at least six justices will conclude it's still premature to accept the cases that are now before them. 

Michell adds, however, that there's also a good argument to make in favor of granting cert now, rather than letting the lawsuits drag out in the lower courts.  

I know that Justices Thomas and Alito are fed up. The lower courts are basically thumbing their nose at them again, just like they did after Heller, but back then we had Justice Kennedy on the Court. The conventional wisdom is that he didn't want to take another Second Amendment case... so we didn't get any of these cases that we asked the Court to take between Heller and Bruen. We didn't get any of them accepted for twelve years. 

But now we have six, even though one or two might be a little squishy, in favor of the Second Amendment and also, I think, tired of the lower courts basically thumbing their nose at the Bruen ruling. I think they also know that the other side is playing the long game. The other side is hoping that Biden wins and one or more of the older justices will have to retire, and Biden will get to put another justice in there and change the vote around. I think they're probably inclined to do something sooner rather than later so they can set the record straight.


Michel notes there's also a "wild card"; the Rahimi case. A decision from the High Court is expected to come down next month, and Michel says the Court could end up using that case as a vehicle to flesh out the "text, history, and tradition" test it laid out in Bruen. Michel says it's entirely possible the justices will keep the gun ban cases in conference until after Rahimi has been decided, and then grant cert, vacate the lower court decisions, and remand the Illinois and Maryland lawsuits back to the courts of appeal for further review in light of Rahimi's findings. 

That wouldn't be the worst outcome for gun owners, especially if Rahimi makes it clear that the lower courts aren't abiding by that test, but it would still kick the gun ban can down the road for at least another few months, and likely a year or more. 

My hope is that the Supreme Court's opinion in Rahimi will explore whether or not entire classes of people can be subject to a prohibition on ownership or if there needs to be an individual determination of "dangerousness" before they're excluded from the Second Amendment's protections, but that it won't be such a broad decision that it would impact the gun ban cases that were discussed in conference today. 

The Court has hung on to several prohibited person cases pending the Rahimi decision, including challenges to the lifetime ban on gun ownership for someone convicted of a crime punishable by more than a year in prison (Garland v. Range) and whether "unlawful" drug use disqualifies someone from exercising their Second Amendment rights (U.S. v. Daniels), but the questions posed by those cases are far different than the ones presented in the challenges to the gun bans in Illinois and Maryland. The prohibited person cases all deal with who is protected by the Second Amendment, but the gun ban lawsuits revolve around what is protected by the Second Amendment's language. 


Michel says that gun owners shouldn't freak out if none of the gun ban challenges show up in Monday's orders from the Court. Even if the justices do decide to grant cert to one or more of the lawsuits, it might take more than one conference to reach that decision. Heller, for instance, went through three conferences before cert was granted, and my recollection is that Bruen went through at least two conferences before the justices decided to hear the case. 

I'm not going to melt down if we don't get a firm decision on Monday, but I'm still a little anxious to see what, if anything, the justices decided today. The Second Amendment rights of millions of Americans in states that have banned commonly owned semi-automatic firearms are at stake, and delaying acceptance (or worse, rejecting the cert petitions outright) will allow these infringements to continue for the foreseeable future. 

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