After Rahimi, What's Next for the Supreme Court and the Second Amendment?

Erin Schaff/The New York Times via AP, Pool

The Supreme Court will release more opinions this week, but none of the remaining cases to be decided this term are Second Amendment-related. Still, Monday could prove to be a crucially important day for gun owners, with the Court releasing its orders from last week's conference at 9:30 ET Monday morning. 


For months now, the Court has held on to a half-dozen other cases that all deal with prohibited persons; from Range v. Garland (whether someone can be permanently prohibited from possessing a firearm after a non-violent misdemeanor conviction punishable by more than a year in prison) to U.S. v. Daniels (whether federal law prohibiting the possession of firearms by someone who “is an unlawful user of or addicted to any controlled substance" violates the Second Amendment). After the release of the Rahimi decision, the Court is almost certainly going to address these cases through what's known as a GVR: grant cert, vacate the previous decision, and remand the case back to the lower courts for further review in light of Rahimi's holding. 

But as Chuck Michel, head of the California Rifle & Pistol Association and co-founder of the 2nd Amendment Law Center, noted on shortly after the Rahimi decision came down, the Court has also kept ahold of six cases challenging the gun and magazine bans that are a part of the Protect Illinois Communities Act, and we could see the justices move to grant cert in those cases as early as tomorrow. 


Now, there's no guarantee that the Court will accept the Illinois cases. I'm pretty skeptical, as a matter of fact. But if the justices were going to simply reject the cert petitions they almost certainly would have done so before now. Instead, the cases have been relisted in conference five times. That points to there being four justices in favor of doing something with the lawsuits. The questions are what and when. 

There are a few possibilities.

Let's get the most depressing possibility out of the way. The Court could turn away the Illinois cases, despite holding onto them for the past few weeks. If one or more of the justices wanted to write a dissent from that decision, the Court could be holding on to the cases until it's written and ready for publication, which would explain the relisting. If that happens, the Illinois cases go back down to the Seventh Circuit, and it could be months before they're in a position to get back in front of SCOTUS.  

The justices could also grant, vacate, and remand the Illinois challenges back to the Seventh Circuit in light of its ruling in Rahimi (or even Cargill, where the Court held that semi-automatic firearms equipped with bump stocks are not "machine guns" under federal law), but after going over the majority opinion, the dissent, and the concurrence I'm struggling to find much in Rahimi that would provide additional guidance to the Seventh Circuit in a do-over. 


When it overturned an injunction against PICA issued by U.S. District Court Judge Stephen McGlynn, the appellate court held that the gun and magazine bans at issue fall beyond the scope of the Second Amendment's protections because, in part, semi-automatic rifles and other so-called assault weapons are "like" machine guns. There's nothing in Rahimi that speaks directly to that decision, but if the Court does GVR the Illinois cases the most plausible argument for a re-hearing would be an admonishment from the Court that the bans clearly implicate the Second Amendment, and that state of Illinois must provide historical justification to prohibiting the sale and possession of arms in common use for lawful purposes.    

A few weeks ago I thought it was highly unlikely that the Court would grant cert outright and agree to hear the Illinois cases, but now I'm a little more open to that scenario. Throughout Rahimi's majority opinion, concurrence, and dissent, the justices repeatedly noted all of the Second Amendment issues that the Court has yet to address. As Second Amendment attorney Kostas Moros commented while reading Justice Brett Kavanaugh's concurrence, SCOTUS can only provide those answers when it accepts 2A cases. 


The best way to speed up the pace would be to take the Illinois cases and schedule oral arguments for the fall term.

In all honesty, though, I have no idea what, if anything, the Court will do about the Illinois cases when their orders from last week's conference are released tomorrow morning. No action at all may be taken, as frustrating as that would be. 

After seeing the justices turn down so many similar requests in the two years since Bruen, I'm definitely not counting on the Court granting cert to a gun and magazine ban case tomorrow.  But I'm slightly less pessimistic about the possibility than I was before Rahimi was released; not because of what the opinion said, but because of what it didn't address. 

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