Now that the Fourth Circuit Court of Appeals has upheld Maryland's ban on so-called assault weapons, there's a clear path for the Supreme Court to address the prohibitions on modern sporting rifles enacted in a handful of states when the justices return to the bench this fall. But some gun control activists are convinced (or are at least trying to convince others) that the Court will turn away the anticipated cert petition filed by plaintiffs when Bianchi v. Brown is heard in conference.
The Huffington Post's Roque Planas claims that the Court is "unlikely' to take up the case, citing Everytown Law's Eric Tirschwell and other anti-gun activists. So what's they're argument?
The 4th U.S. Circuit Court of Appeals upheld that Maryland ban last week after the Supreme Court set the new gun rights standard in Bruen, handing reformers a major victory. Two other circuits have also declined to extend constitutional protections to so-called “assault rifles” — the semiautomatics with tactical cosmetic features favored by mass shooters.
Two of the judges who have recently voted to uphold assault weapons bans — Harvie Wilkinson III in the Maryland case and Frank Easterbrook in a case out of Illinois — are known as prominent conservative jurists and were both appointed by former President Ronald Reagan.
Without a circuit split, the Supreme Court faces little urgency to get involved. And one may never happen, given the fact that assault weapons bans are a blue-state phenomenon. No state in thenotoriously conservative Fifth Circuit, for example, has an assault weapons ban on the books to challenge.
Ehh. It's true that the lack of a circuit split generally favors the Court denying cert, but that's not always the case... and it certainly hasn't been a hard-and-fast rule when it comes to Second Amendment litigation. There was no circuit split over "may issue" carry laws, again because the vast majority of states already had "shall issue" laws in place, but SCOTUS still took up Bruen because of the importance of the issue at hand.
As it turns out, a three-judge panel on the Fourth Circuit was prepared to declare Maryland's ban unconstitutional, but the Fourth Circuit preempted that decision and took the case to an en banc panel before the three judges had the opportunity to release their decision. Those legal shenanigans may give the justices more reason to take up Bianchi, but I doubt that the lack of a circuit-split alone is going to keep the Court away from an "assault weapons" ban case.
Though Justices Thomas and Alito have both said they want to consider whether semiautomatic rifles merit constitutional protection, the Court will first face more pressing questions that have already resulted in split decisions since setting the Bruen standard, like whether states can impose higher age restrictions on handgun purchases or whether some people with felony convictions can possess firearms.
It's true that the Supreme Court already has pending cert requests in cases dealing with carry bans for under-21s and a prohibited person case, but that doesn't mean the Court can't hear more than one 2A challenge next term, or in the spring session. And Planas's analysis really goes off the rails when he contends that even if the Court does accept Bianchi the justices are likely to uphold Maryland's ban.
And the Supreme Court’s most recent gun ruling United States v. Rahimi exposed a wide division between the Second Amendment absolutist Thomas and the rest of the court’s conservative majority — raising doubts that the high court would torch assault weapons bans even if it considered the question.
“There is strong reason to believe there is not a majority of five that thinks the Second Amendment means no state can ban assault weapons,” said Eric Tirschwell, executive director of Everytown Law. “The justices live in the same world we all live in. They see the way in which assault weapons have been used to carry out some of the most horrific mass shootings imaginable... It would not surprise me at all if the Court did not take this issue up any time soon, or ever.”
I think Tirschwell is offering his fervent hopes, not a serious analysis. As Planas notes, both Thomas and Alito have said they're ready to hear an "assault weapons" challenge, but Justice Brett Kavanaugh also found D.C.'s ban on "assault weapons" unconstitutional when he was on the D.C. Circuit Court of Appeals (though the majority disagreed). And Justice Neil Gorsuch said in his confirmation hearing that SCOTUS has already declared if firearms are in "common use for self-defense" they're protected by the Second Amendment.
Gorsuch was actually a little off in that comment. What the Court said in Heller is that firearms "in common use for lawful purposes like self-defense", then they're protected. Self-defense is one lawful purpose, but not the only lawful purpose for keeping and bearing arms, and I suspect that Gorsuch too is willing to take on Bianchi and address the issue of whether commonly-owned firearms like AR-15s can be banned from being sold or possessed.
It's true that Chief Justice John Roberts and Justice Amy Coney Barrett are harder to pin down on the issue of a ban on so-called assault weapons, but Roberts has already agreed that the Second Amendment doesn't just protect arms that were in existence in 1791. He was part of the unanimous per curium opinion in Caetano v. Massachusetts that held stun guns to be protected arms. As for Barrett, while she declined to grant an emergency appeal challenging Illinois' ban on so-called assault weapons, she did so without comment, and I think it's more likely that the case was rejected because it was still working its way through the lower courts than any opinion she might have on the constitutionality of a semi-auto ban.
The truth is that we don't know what the Court will do with Bianchi. The vast majority of cert petitions presented to the Court are denied, so in that respect the odds are already against the case being accepted. On the other hand, it only takes four justices to agree to hear a case. Given the past commentary from justices like Thomas, Alito, Kavanaugh, and Gorsuch's, the votes may very well be there to at least hear the case... especially given the screwy nature of the Fourth Circuit's decision, which held that AR-15s and other semi-automatic long guns aren't protected by the Second Amendment because they're "like" machine guns and are "unusually dangerous".
Bianchi's cert petition should be filed with the Court in a few weeks, and will most likely be scheduled for one of the first conferences after the justices return from their summer break. It will probably be October or November before we learn what SCOTUS will do with Bianchi, but I see no reason for gun control activists to assume that the justices will turn down the case other than wishful thinking on their part.
