The Supreme Court will meet in conference again tomorrow, and for the twelfth time this session the justices will be discussing several cases dealing with bans on commonly owned firearms and ammunition magazines.
After the Snope lawsuit challenging Maryland's ban on so-called assault weapons was rejected after more than a dozen re-lists (along with the Ocean State Tactical case challenging Rhode Island's magazine ban), many gun owners and Second Amendment advocates are keeping their fingers crossed that the same fate doesn't await cases like Duncan v. Bonta (taking on California's ban on "large capacity" magazines) and Viramontes v. Cook County (challenging the Illinois county's ban on "assault weapons").
A lot of us, including myself, have largely been pinning our hopes on the Third Circuit Court of Appeals releasing its en banc opinion in Association of New Jersey Rifle & Pistol Clubs v. Platkin. Oral arguments were heard last October, and a decision could come at any time. Given the current makeup of the Third Circuit, it's expected that the en banc decision will be favorable to the plaintiffs, and will set up a circuit court split on the issue of bans on commonly owned semi-automatic rifles and ammunition magazines that can accept more than ten rounds.
Even without that decision, though, SCOTUSBlog's Adam Feldman is bullish on the Court taking up at least two of the five cases addressing gun and magazine bans that have been heard and re-heard in conference multiple times this session. Why? As he explains:
First, the relist numbers (that is, cases considered at multiple conferences – which can mean the court is seriously considering taking these up) are unusually high this term. Of the relisted cases, several have been relisted eight or more times – a level of sustained conference attention that historically correlates strongly with an eventual grant. Smith v. Scott, about whether police officers’ use of force to restrain a suspect violated the Fourth Amendment, leads at 17 relists, a figure that almost never appears for petitions that are eventually denied.
Second, the amount of Second Amendment cases is larger and more coordinated than anything seen since the post-Bruen term (in which the court found that one had a right to carry a concealed firearm) began working through its downstream cases. Five petitions from different circuits, involving both magazine capacity restrictions and assault-style rifle bans, are pending simultaneously.
From what I recall, one or two re-lists is generally a positive sign, but after that the odds of a cert grant drop pretty dramatically. Feldman has far more expertise with the machinations of the Supreme Court than I do, though, so I'll take him at his word that the large number of re-lists is actually a positive development, even in light of what happened with Snope and Ocean State Tactical last term.
Of the five hardware cases that the justices are slated to discuss in tomorrow's conference, Feldman says Duncan probably has the best change of getting a cert grant.
Duncan has been relisted 11 times, has a confirmed en banc dissent in the U.S. Court of Appeals for the 9th Circuit below, presents a genuine circuit split on magazine capacity restrictions, and is represented by Erin Murphy of Clement & Murphy. The petition also carries a takings clause hook, challenging the requirement that owners dispossess themselves of lawfully acquired magazines without compensation. Five amicus briefs were filed at the cert stage. Across every dimension the model weighs, Duncan is a strong contender for cert.
Viramontes v. Cook County presents the assault-style rifle question directly – whether the Second and 14th Amendments protect the right to possess AR-15 platform rifles in common use. David Thompson of Cooper & Kirk represents the petitioner, the case has been relisted 11 times, and SCOTUSblog has featured it as a case to watch. The U.S. Court of Appeals for the 7th Circuit issued the opinion below as a per curiam on June 2, 2025, with no dissent – which, while not a negative signal, means the case lacks the additional cert indicator that a written dissent would provide. What gives the petition its force is the acknowledged four-to-seven circuit split on assault weapon bans and the weight of the relist count.
Grant v. Higgins presents the same assault-style rifle question from the U.S. Court of Appeals for the 2nd Circuit, also represented by Thompson and Cooper & Kirk, and relisted six times. The two cases are direct companions. If the court grants Viramontes, it will almost certainly hold Grant pending the outcome in the former case or consolidate them.
Despite Feldman's claim to the contrary, there's not really a circuit court split on the issue of "assault weapon" bans at the moment. Rather, several circuit courts have upheld those bans, but most other appellate courts haven't had the chance to weigh in given that these bans exist in less than a dozen states. As I mentioned earlier, though, the Third Circuit decision in ANJRPC v. Platkin is expected to create that split in the lower courts that SCOTUS like to see before deciding to hear a case.
I'd personally feel much more confident about SCOTUS granting cert to one or more of these cases if we had that Third Circuit decision in hand, but ultimately I don't think it's necessary. It takes four justices to grant cert, and we know that Thomas, Alito, and Gorsuch are all on board. Kavanaugh said last term he expects the Court to address these issues "in the next term or two," and it very well might be his call to make as to when that happens.
