The Supreme Court once again took no action on five cert petitions challenging bans on so-called assault weapons and large capacity magazines on Monday, and will likely schedule the cases for the Court’s next conference.
The lawsuits, which involve challenges to California and Washington’s magazine bans as well as “assault weapon” prohibitions in Cook County, Illinois and the state of Connecticut, have been discussed in conference for months now. The speculation is that the Court is waiting for a ruling from the Third Circuit Court of Appeals in Association of New Jersey Rifle & Pistol Clubs v. Davenport, which is a challenge to the Garden State’s gun and magazine ban.
The Third Circuit, sitting en banc, heard oral arguments last October Given the makeup of the court, it’s expected that a majority will rule the gun and magazine bans a violation of the Second Amendment, which would set up a circuit court split on the issue. SCOTUS doesn’t have to wait for a split to develop before addressing bans on commonly owned arms, but that seems to be the most likely reason why the justices have been keeping the cases in a holding pattern for the past few months.
The only 2A-related case that the Court took action on today was a case called Westforth Sports v. Chicago, with justices denying the cert petition filed by the owners of a now-defunct Indiana gun shop that had been sued by Chicago over alleged straw purchases of handguns.
Lawyers for Westforth Sports argued that Chicago cannot seek to litigate against an entity that is outside of Illinois.
“Specific personal jurisdiction does not lie against an out-of-state seller of firearms when a third party transfers them of their own initiative into the forum state,” lawyers for Westforth Sports wrote.
Chicago alleged Westforth sold more than 300 guns between 2014 and 2021 to known straw buyers. The lawyers said those guns were used in homicides, shootings and assaults.
An Illinois Appeals Court ruled in favor of Chicago, finding the gun store targeted Illinois customers and regularly sold to Illinois buyers, including straw purchasers.
Attorneys for Westforth Sports didn’t raise a Second Amendment challenge or even argue that Chicago’s lawsuit was preempted by the Protection of Lawful Commerce in Arms Act. Instead, the question they presented to the justices was whether the Due Process Clause of the Fourteenth Amendment “allow a state to exercise specific personal jurisdiction over a non-resident retail seller of legal, non-defective, easily transportable products based on the seller’s foreseeability that some such products may, through the agency of third parties over whom the seller has no control, be transported into the forum state without any direction from the seller?”
A trial court granted Westforth Sports’ request to dismiss the case, but it was reinstated by the Illinois Court of Appeals, which argued (according to the defendants) that Westforth “must have known that some of its customers were straw purchasers who may take firearms into Illinois,” given the number of handguns the shop sold over the years that were recovered in neighboring Illinois. The Illinois Supreme Court denied Westforth Sports’ appeal, leading to the filing of the cert petition.
It’s possible this case will come back before the Supreme Court in the future. The case against Westforth Sports has yet to go to trial, and the Supreme Court generally waits until a lawsuit filed in state court has been fully litigated and decided before intervening. Today’s decision to deny cert only allows Chicago’s case against the now-shuttered Indiana gun shop to proceed in the Illinois court system. It indicates nothing about the merits of the lawsuit, which alleges the owner of the gun store intentionally aided in the straw purchasing of firearms intended for Illinois residents.
Because this was essentially an interlocutory appeal, I’m not particularly surprised the Court denied cert in Westforth. I’m far more concerned with what the justices are going to do with cases like Duncan v. Bonta and National Association of Gun Rights v. Lamont, and I’m keeping my fingers crossed that the Third Circuit will release its opinion in ANJRPC before the justices hold their next conference.
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