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A Curious and Frustrating Day at the Supreme Court

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If the Supreme Court does end up accepting a challenge to an “assault weapon” ban in the coming weeks, it will be Illinois’ gun and magazine ban that goes under the microscope. The Court rejected a cert request in Bianchi v. Brown without comment on Monday, allowing Maryland’s “assault weapons” ban to remain in effect for now, and also turned away a petition in Srour v. NYC challenging the city’s “good moral character” clause for residents applying for permission to keep a rifle or shotgun in their home. 

While the Court denied cert in those cases, it took no action on a bevy of lawsuits taking on the Protect Illinois Communities Act, giving Second Amendment advocates at least a ray of hope that there are four justices willing to grant cert after another round of debate in conference. 

As 2A attorney and scholar Mark W. Smith points out, all of these cases are what’s known as interlocutory appeals, meaning the appellate courts have yet to issue their final decisions. Once the Fourth Circuit issues its en banc decision in Bianchi v. Brown the losing side can take their appeal directly to the Supreme Court… assuming the Fourth Circuit doesn’t play even more games with the gun ban case and decide to kick it back down to district court for a new trial on the merits, which would set the case back several years. 

Unfotunately, Smith says he’s not particularly confident that the Court will end up granting cert to the Illinois cases either. 

I think that this means one of two things (I think): first, they may still grant cert in one of those cases (I think this outcome unlikely but possible) or, second, SCOTUS intends to deny cert in the case but a justice (or multiple justices) are writing a dissent from the denial of cert attacking the reasoning of the nutty decision by Judges Wood and Easterbrook. 

Finally, I think that if SCOTUS were going to grant cert in the ILL cases, they could have granted cert in ILL cases and then held the Bianchi case (meaning not act on it) until after they decided the ILL cases. So, ultimately, I think the interlocutory nature of these “assault weapon” cases will thwart our ability to get an “assault weapon” case before SCOTUS during the 2024-2025 term. But I hope I am wrong.

I suspect that Mark is right, though I’d note that the Illinois cases are arguably a little further along than Bianchi, which gives me the slimmest of hopes that the Court will grant cert to those cases. If there were four justices ready to take that step, however, they probably would have held on to Bianchi rather than allowing the Fourth Circuit to continue to work on its opinion about the constitutionality of Maryland’s gun ban. 

The Seventh Circuit, on the other hand, has had a chance to weigh in, at least on a preliminary injunction request against the Protect Illinois Communities Act. The three-judge panel that overturned a lower court decision halting enforcement of the law veered sharply outside the “text, history, and tradition” test spelled out by SCOTUS by concluding that commonly-owned semi-automatic firearms designated as “assault weapons” by the state of Illinois aren’t protected by the Second Amendment at all because they’re not in common use for self-defense, and are “like” machine guns. Magazines, the Seventh Circuit contends, aren’t “arms” at all, and have no protection whatsoever under the text of the Second Amendment. 

That appalling reasoning has allowed the ban to remain in effect, impacting hundreds of thousands of Illinois gun owners. Even if the case has yet to be fully decided on the merits, the Seventh Circuit has given the Court ample justification to grant cert to these challenges. I’m not giving up hope that there are four justices who are ready to accept these cases, but after today’s disappointing and frustrating decision I’m also tempering my expectations. 

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