This week was already shaping up to be an important one for the Supreme Court and its take on our right to keep and bear arms, but things got even more interesting on Monday when the justices slated two additional cases for review in this Thursday's conference. Three 2A-related cases are already slated to be discussed in conference, and each could be the vehicle for the Court to finally weigh in on whether bans on commonly-owned arms like AR-15s and magazines that can hold more than ten rounds violate our Second Amendment rights.
Two of the three 2A cases originally scheduled for this week's conference involve magazine bans; Gator's Custom Guns v. Washington and Duncan v. Bonta, which first reached the Supreme Court in 2022. In fact, the Court granted cert to the lawsuit taking on California's mag ban after the Bruen decision was handed down, but only to vacate the lower court decision upholding the ban and order the lower court to take a second look in light of Bruen. The Ninth Circuit sent the case back down to district court, where U.S. District Judge Roger Benitez once again ruled the ban a violation of the Second Amendment. On appeal, the Ninth Circuit once again reversed Benitez and declared the mag ban constitutionally acceptable, ruling that ammunition magazines aren't "arms" protected by the Second Amendment.
By that logic, anti-gun states like California could turn every gun that accepts a detachable magazine into single-shot firearms by banning external mags altogether. That might be too much even for the anti-gunners in Sacramento, but if the Supreme Court denies cert to Duncan this time around, it means that all of the provisions of California's magazine ban can be enforced, including the section of the law that requires those who lawfully purchased "large capacity" magazines to permanently modify them to comply with California law, turn them over to police, move them out of state, or destroy them. That portion of the mag ban has been on hold thanks to an injunction granted by Benitez, but it would disappear if the Court turns away Duncan and lets the Ninth Circuit's decision stand.
The justices were also already slated to look at Viramontes v. Cook County; a Second Amendment Foundation and Firearms Policy Coalition supported challenge to the ban on so-called assault weapons enacted by Cook County, Illinois. The Seventh Circuit has adopted the position that bans on sem-automatic long guns like the AR-15 are okay because those arms are "almost the same gun as the M16 machinegun." And contrary to the Supreme Court's holding in the Miller case in the 1930s, which declared only those arms that are in common use for militia service are protected by the Second Amendment, the Seventh Circuit maintains that “weapons that may be reserved for military use" have no Second Amendment protections whatsoever.
Viramontes has been fully decided on the merits, and it, along with Duncan, would be great vehicles for the Court to quash semi-auto bans and prohibitions on hundreds of millions of "large capacity" magazines. As I said, this is an extremely important week for the Second Amendment at the Supreme Court.
On Monday, though, the Court added two more 2A-related cases to their conference schedule (while continuing to keep five cases addressing gun b bans for adults under 21 in a holding pattern). Both cases were previously heard during the Court's November 21 conference, but SCOTUS took no action on either when it released its orders from conference on November 25. Vincent v. Bondi and U.S. v. Duarte were left in limbo for a week, but now it appears justices are ready and willing to take a second look at the appeals of Melynda Vincent and Steven Duarte.
Both of these cases deal with the federal prohibition on gun ownership for those convicted of crimes punishable by more than a year in prison, even if those offenses are non-violent in nature. As the cert petition in Duarte points out:
Seven circuits—the First, Second, Fourth, Eighth, Tenth, and Eleventh Circuits, plus now the Ninth Circuit—have held post-Bruen “that §922(g)(1)is constitutional as applied to all felons.” These seven circuits eschew as-applied challenges entirely, deeming 18 U.S.C. §922(g)(1) constitutional in all applications, even as to non-violent offenders.
... On the other side of the ledger are the Third, Fifth, and Seventh Circuits, which have (correctly) held that Bruen abrogated their past §922(g)(1) precedent, such that courts now must evaluate as applied challenges to §922(g)(1) by reference to the Second Amendment’s text at the threshold and then to whether historical tradition supports disarming an individual for her predicate felony conviction(s).
The Cour has already granted cert to one 922(g) case this term, but the Hemani case addresses 922(g)(3)'s prohibition on gun use for "unlawful" drug users, not the blanket ban on gun possession for anyone convicted of a crime punishable by more than a year in prison. If they don't grant cert to these cases as well, the justices may end up deciding to hang on to both Vincent and Duarte until Hemani has been decided. Of course, the justices could also simply deny both appeals and keep Melynda Vincent and Steven Duarte from regaining their Second Amendment rights, at least until the DOJ's rights restoration process takes effect.
That's the approach the Trump administration, through Solicitor General D. John Sauer, has recommended. If the Court punts on both of these 922(g)(1) cases, though, it won't just impact these two plaintiffs, but potentially tens of thousands of other Americans who've been stripped of their 2A rights after being convicted of a non-violent offense.
SCOTUS has already accepted two Second Amendment cases this term. Are there four justices willing to accept a third, fourth, or fifth? Given the stakes involved for millions of Americans, let's hope so.
