When the Supreme Court declined to address Maryland's ban on so-called assault weapons by rejecting the Snope v. Brown case earlier this year, Justice Brett Kavanaugh threw 2A advocates a bone when he predicted that the Court would take up the issue in another "term or two." The Court had the opportunity to fulfill Kavanaugh's prediction as early as today, but instead the justices will keep gun owners in limbo for at least another week.
The Supreme Court's conference last Friday included (on paper, anyway) discussion about whether to grant cert to Gator's Custom Guns v. Washington, Duncan v. Bonta, and Viramontes v. Cook County. The first two cases are challenges to Washington and California's bans on "large capacity" magazines, while the third is a lawsuit aimed at overturning Cook County's ban on so-called assault weapons.
None of those cases made an appearance in the Court's orders list released on Monday morning. Instead, they've all been relisted for this Friday's conference.
That's not bad news, by any means. As SCOTUSBlog's John Elwood wrote back in October as the justices settled in for their fall term, "As a statistical matter, the fact that a cert petition has been relisted is usually a sign at least one justice is interested in the case, and the odds of Supreme Court review increase after a relist."
That's true, at least to a certain extent. While the Court only grants cert to 1% of petitions filed, SCOTUSBlog found that between the 2016 to 2020 terms, somewhere between 31% and 43% of petitions that were re-listed at least once were eventually accepted by the justices.
There seems to be a statistically significant "sweet spot" for relists, though.
Another longstanding reality is that two relists are not better than one, but are still far better than no relist at all. In other words, the odds of a grant are at their highest when a case is first relisted; as the case is relisted additional times, the odds of a grant fall as it becomes more likely that the court intends to enter a summary decision (the practice by which the court summarily grants cert and issues an opinion, typically reversing or vacating the judgment of the lower court, without receiving merits briefing or hearing oral argument). Between 2016 and 2020, a case relisted two or more times saw its odds of a grant fall to as low as 11 to 15% – still better than the odds of a non-relisted case being granted, but significantly lower than for first-time relists. It appears that the justices generally don’t need that long to decide whether to grant a case and to investigate potential vehicle problems. If the case sticks around longer, it’s because something else is going on.
We saw that with Snope, which was relisted fifteen times(!) before SCOTUS finally denied cert, with Justice Samuel Alito, Justice Neil Gorsuch, and Justice Clarence Thomas all expressing their support for granting cert. It takes four justices to decide to hear a case, however, and for whatever reason Kavanaugh, Chief Justice John Roberts, and Justice Amy Coney Barrett (along with the liberal wing of the Court) weren't ready or willing to decide whether the most popular rifle in America can be banned without violating our right to keep and bear arms.
So, the fact that these three cases will be discussed in a second conference shouldn't worry Second Amendment advocates. If the cases are relisted a second time, though, the odds of any of them being accepted go down substantially.
There is one 2A-related cases scheduled for this Friday's conference that's on its third relist: Vincent v. Bondi. That case addresses the ban on gun ownership for those convicted of a crime punishable by more than a year in prison, whether or not it was a violent offense. Another case challenging that same statute called Duarte v. United States has been carried over for a second conference. The Court has already granted cert to a prohibited persons case dealing with gun bans for unlawful users of drugs, and if they don't grant cert outright to Vincent or Duarte the justices may still hang on to them and remand them back to the lower courts after they issue their opinion in U.S. v. Hemani.
Four other cases implicating the right to keep and bear arms will make their first appearance at this Friday's conference. Two of them (Rush v. U.S. and Robinson v. U.S.) are challenges to the National Firearm Act's restrictions on short-barreled rifles. Zherka v. Bondi is another prohibited person case addressing the same statute as Vincent and Duarte, while the final case (Gustafson v. Springfield) is an appealing of lower court decisions throwing out a lawsuit against a gun maker and gun retailer as a violation of the Protection of Lawful Commerce in Arms Act.
As we've reported (and as 2A orgs like Gun Owners of America and Firearms Policy Coalition have criticized), the DOJ has asked SCOTUS to reject the NFA cases, and I suspect a majority of justices will vote to do just that. It would be incredibly odd for the Court to issue a ruling favorable to gun owners regarding NFA-restricted items like SBRs and suppressors before it weighed in on the constitutionality of bans on semi-automatic firearms that aren't regulated by the NFA, and as the DOJ has pointed out in its responses to the cert petitions, there is currently no circuit court split on the constitutionality of the NFA and its taxation and registration schemes.
That is also true when it comes to bans on so-called assault weapons and large capacity magazines, though expectations are high among 2A advocates that the Third Circuit will create a split by finding New Jersey's bans an infringement on the Constitution. SCOTUS doesn't have to wait for that conflict to accept a case, but an appellate court split does tend to increase the odds of that happening (and is true for both 2A cases that have already been granted cert this term).
Will the lack of a circuit court split doom Duncan, Gator's Custom Guns, and Viramontes? I certainly hope not, especially since if Duncan is denied any California gun owner who currently possesses a magazine that can hold more than ten rounds could face criminal charges going forward. There are literally millions of good reasons for the Court to take up "assault weapon" and magazine ban cases now instead of kicking the can down the road yet again, and I'm choosing view these relists as a reason to be optimistic... at least until next Monday morning.
