Attention Turns to Fourth and Ninth Circuits After SCOTUS Punts Illinois Gun, Magazine Ban Cases

AP Photo/Lisa Marie Pane

The nine justices on the Supreme Court have admitted they've left a lot of questions about the scope of the right to keep and bear arms unanswered to date, but they have made one thing pretty clear today: they're not in a rush to provide answers. In turning away an interlocutory challenge to the gun and magazine bans that are a part of the Protect Illinois Communities Act, the Court has signaled that it won't be taking up any case dealing with "assault weapon" bans until final judgment has been rendered by a district court and a court of appeals has had the opportunity to review that decision. 


With the Illinois cases scheduled to go to trial before U.S. District Judge Stephen McGlynn in September, it could be well over a year from now before the Seventh Circuit upholds or overturns McGlynn's eventual decision. Thankfully, there are a couple of other challenges in the pipeline that could get to SCOTUS long before the PICA cases are decided. 

Back in March, an en banc panel of the Ninth Circuit Court of Appeals heard oral arguments in Duncan v. Bonta, which challenges California's ban on the sale and possession of ammunition magazines that can hold more than ten rounds. 

Duncan has already been decided at the trial court level, with U.S. District Judge Roger Benitez ruling that the ban violates the Second Amendment. When the en banc panel releases its decision, it will almost certainly overturn Benitez's decision, but Duncan can then be appealed to the Supreme Court; not on an interlocutory basis, but after final judgment has been rendered by the lower courts. 

The Fourth Circuit Court of Appeals also held en banc oral arguments in March, but the question in Bianchi v. Brown is whether Maryland can ban so-called assault weapons without violating the Second Amendment. Based on the makeup of the Fourth Circuit, as well as its almost unprecedented move to take the case en banc even before a three-judge panel had issued its ruling, the appellate court is likely to find Maryland's ban doesn't violate the Second Amendment. Again though, once the en banc panel releases its opinion, Bianchi can be appealed to the Supreme Court; not on an interlocutory basis, but after final judgment. 


Since oral arguments were held three months ago, the Fourth and Ninth Circuits must be pretty close to deciding Bianchi and Duncan, right? 


The appellate courts aren't under any sort of deadline to issue their decisions, and we've unfortunately seen delays of a year or more in other 2A cases. In fact, the three-judge panel that originally heard Bianchi waited more than a year after oral arguments were held and never did get around to issuing its decision before the Fourth Circuit decided to take the case en banc

I hope I'm wrong, but I'd be shocked if either Bianchi or Duncan were decided before the election; not because of any debate or conflict over the law in question, but because the appellate courts are happy to keep these cases away from SCOTUS for as long as possible in the hopes that Joe Biden (or whoever the Democratic nominee is) wins in November and can add a couple of anti-gun justices to the bench. At the moment, Duncan and Bianchi are the best vehicles to undo these prohibitions on commonly owned arms, but the judges who'll decide them are more likely to pump the brakes than hit the accelerator and get them to SCOTUS as soon as possible. 


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