I was hoping that the Supreme Court would grant cert to one or more of the Second Amendment cases that have been pending in conference in light of their decision in Bruen, and technically I got my wish. All four cases were indeed granted cert in today’s orders, but all four decisions were immediately vacated and the Court sent the cases back down to the respective appellate courts for further review “in light of” the decision in New York State Rifle & Pistol Association v. Bruen.
The Association of New Jersey Rifle & Pistol Clubs, which is the plaintiff in a case challenging that state’s ban on the purchase or possession of ammunition magazines with a capacity greater than ten rounds, quickly sent out an alert to its members about the development, saying that “these developments strongly imply that the outcome of the mag ban case might be different under the new Bruen rules,” adding that the Court “also took a similar action in a challenge to an assault firearms ban in Maryland,” which also “implies that assault firearms bans may not survive scrutiny under Bruen, and the potential implications for New Jersey are significant.”
As we’ve previously discussed, the four cases in question involve challenges to New Jersey and California’s ban on “large capacity” magazines as well as Maryland’s ban on so-called assault weapons and Hawaii’s “may issue” permitting process for open carry (the similar “may issue” requirement for concealed carry was upheld by the Ninth Circuit in a case called Peruta v. San Diego back in 2016). The Third, Fourth, and Ninth Circuits will now have to revisit their decisions upholding all of these gun laws, all of which relied on the two-part interest-balancing test explicitly rejected by the Supreme Court in Bruen.
Instead, the courts will now have to determine whether these types of bans are “consistent with this Nation’s historical tradition of firearm regulation”, specifically at the time of the ratification of the Bill of Rights and in the post-Civil War period when the Fourteenth Amendment was ratified. It’s going to be awfully difficult to do so given that there is no historical tradition of banning entire classes of firearms or limiting their ammunition capacity.
The AR-15 wasn’t the first major advancement in firearms technology after all, and yet when single-shot cap and ball pistols were made outdated thanks to Samuel Colt and his repeating revolvers, there was no widespread attempt to ban them from the consumer market (though there were regulations on the manner in which they could be carried). Similarly, when the first repeating rifles came to market there was no hue and cry to ban them in the name of public safety or calls to remove these “battlefield weapons of war” from the hands of civilians. Heck, I can’t even find any evidence of a 19th century equivalent to Joe Biden complaining that “no one needs to load on Sunday and shoot all week long”, despite the introduction of a 16-round fixed magazine in early repeating rifles.
Unfortunately, we’ve seen lower courts play plenty of games with our right to keep and bear arms since the Heller decision was handed down, and I suspect that isn’t going to entirely change simply because SCOTUS has become more blunt in their directions to trial and appellate judges. The Fourth Circuit, for example, originally upheld Maryland’s ban on so-called assault weapons because they determined the semi-automatic rifles are “like” machine guns, which they said could be banned under the Heller decision.
It’s entirely possible that they’ll try to pull that same stunt again, but based on Thomas’ majority opinion, I don’t think the Court is going to have much patience for the judges (or anti-gun politicians) that continue to defy their ruling or the text, history, and tradition of our right to keep and bear arms. Justice may not come as swiftly as many gun owners would like, but I’m confident that it will be done.