SCOTUS remands and reverberating effects

SCOTUS remands and reverberating effects
Erin Schaff/The New York Times via AP, Pool

The other day Cam wrote about several of the grant, vacate, remands (GVRs) the Supreme court ordered, and with those, we’ve yet to feel the full effects of what NYSRPA v. Bruen has to offer. We’re looking at just the tip of the iceberg on what both the decision and GVRs are going to bring us. It was a GVR from Caetano v. Massachusetts that was used to dismantle electric weapons laws across the nation and further solidify the fact that just because an arm was not around at the time of the founding, does not mean it’s not a constitutionally protected arm. Seeing four GVRs from SCOTUS on several high profile cases is something to get excited about.

This news is being celebrated across the spectrum of gun rights activists and those who defend our civil liberties. The Second Amendment Foundation (SAF) being among one of the many, recently lauded these GVRs.

The Second Amendment Foundation today hailed the U.S. Supreme Court decision to vacate lower court rulings in several gun rights cases and remand them back to lower courts for review “in light of” last week’s landmark 6-3 decision in New York State Rifle & Pistol Assn., Inc. v. Bruen.

Chief among these cases is Bianchi, Dominic, v. Frosh, a case brought by SAF and the Citizens Committee for the Right to Keep and Bear Arms challenging Maryland’s 2013 ban on so-called “assault weapons.” Other cases include challenges to restrictive gun laws in Hawaii, New Jersey and California. In addition, a SAF case called McDougall v. Ventura County, which challenges a closure of gun shops two years ago during the COVID-19 panic, has been vacated by a Ninth Circuit en banc panel and remanded to the trial court for action consistent with the Supreme Court’s New York ruling.

The other jurisdictions noted, Hawaii, New Jersey and California involve the following cases:


A case challenging Hawaii’s prohibition on open carry.



A case challenging California’s 10 round magazine capacity cap.



A case challenging New Jersey’s 10 round magazine capacity cap.

Learning of the SAF backed McDougall case being vacated and remanded is also a promising sign. In addition to SAF backed cases, other organizations are seeing prospects too. In particular Firearms Policy Coalition and their “assault weapons” related ban case in California, Miller v. Bonta may find rapid relief. They recently filed a motion to lift the stay, which would in turn invalidate California’s ban on so-called “assault weapons” if granted.

The Second Amendment Foundation’s Founder and Executive Vice President, Alan Gottlieb commented on the slew of GVRs and all this movement in the litigation world.

“This is incredibly good news. The importance of Justice Clarence Thomas’ majority opinion in the New York right-to-carry case may not be fully understood until all of these other cases have gone through lower court review. What we’re seeing today could be the beginning of court actions that eventually fully restore rights protected by the Second Amendment.”

Gottlieb, who also chairs the Citizens Committee, said the Ninth Circuit Court of Appeals’ decision to remand the McDougall case back for further proceedings consistent with last week’s Bruen ruling sends a strong signal that federal courts can no longer use a made-up “two-step” process to determine Second Amendment cases. As Justice Thomas wrote in his opinion, “Despite the popularity of this two-step approach, it is one step too many.”

“Our attorneys are already reviewing earlier cases to determine which ones can be re-filed for further action based on the high court ruling in Bruen,” he noted, “and we are confident other cases now remanded back for further review will also fare better in the lower courts.”

These GVRs and seeing the kind of traction we are already, in my opinion, gives extreme promise that we’re going to see more and more restrictions on our fundamental rights be lifted. Granted, it’s hard to read the tea leaves in any of these matters, but as mentioned earlier, it was a similar GVR in Caetano, which caused the hostile to civil rights Massachusetts Supreme Court to invalidate the unconstitutional electric arms prohibition in the Bay state. Will that mean the more hostile Ninth Circuit Court of Appeals, and other equally awful jurisdictions, do the “right” thing? We can’t say for sure. But even Gottlieb seems optimistic in forecasting the outcome of these important pieces of litigation.

“It is also important,” Gottlieb said, “that the high court granted all writs of certiorari in these Second Amendment cases as they were being remanded back for further review. That tells me we have a Supreme Court willing to rein in lower court activism and limit how far they will allow local and state governments to reach when it comes to placing burdens on the exercise of a fundamental, constitutionally-enumerate[d] right to keep and bear arms.”

We’re seeing new and exciting developments by the day, if not hour. What was once a semi-stagnant news cycle on Second Amendment related news, dominated by an impotent Biden-Harris administration, has burst forth with a cornucopia of current events. While some of the news we’re getting is disheartening, like the awful laws recently passed in New Jersey and New York, we can surely celebrate a little. We know that most of what the anti-civil rights cretins throw at us from their swamp won’t hold constitutional muster post Justice Clarence Thomas’s 74th birthday.