Analysis: Supreme Court drops gun ban case…for now [Member Exclusive]

Gun rights advocates hoping the Supreme Court would finally rule on the assault weapons ban were disappointed again this week. But Justice Clarence Thomas offered them a lifeline.

On Tuesday, the Supreme Court sorted out eight pending gun cases, ordering them sent back to lower courts for reconsideration in light of its findings. Rahimi decision. Another set of gun cases — six lawsuits collectively challenging municipal and state bans on AR-15s and magazines in Illinois — received a different treatment. The Court flatly rejected their appeals.

At first glance, this might seem like a devastating blow to gun rights advocates fighting the hardware ban. After all, cases involving the prohibited categories of persons and New York’s legally dubious concealed carry restrictions have been treated as GVR cases—suggesting that the justices are paying close attention to those issues—while hardware ban cases have been mostly ignored. Does this mean the Supreme Court simply isn’t interested in addressing AR-15 and magazine bans?

Not necessarily.

Along with the Court's rejection, Justice Thomas issued a brief opinion suggesting that this was simply a matter of the current procedural state of the cases.

“This Court is right to be wary of the idea of ​​dealing with cases interlocutory,” he wrote. “But I hope that we will consider the important issues raised by these motions once the cases have been finally decided.”

In other words, because the challenges to Illinois’ various equipment ban regimes are only at the preliminary injunction stage rather than a decision on the merits, the Court wants to respect the procedures of the lower courts it oversees before deciding. This should come as no great surprise to those who have followed the Illinois legal saga. The Supreme Court has already twice denied emergency intervention requests in one of the six cases dismissed Tuesday.

Beyond the procedural issues at stake, however, Thomas offered gun rights advocates some hope by stressing the importance of the court addressing state-level equipment ban cases as soon as possible.

“We have never clearly addressed what types of weapons are protected by the Second Amendment,” he wrote. “Certainly, we have explained in District of Columbia v. Hellerthat the protection of the Second Amendment “extends, prima facie, to all instruments that constitute bearable weapons, even those that did not exist at the time of the Founding.”

“We also noted that the Second Amendment does not protect weapons that are not customarily possessed by law-abiding citizens for lawful purposes, recognizing the historic tradition of prohibiting the carrying of dangerous and unusual weapons,” he added. “But these minimum guidelines are far from a comprehensive framework for evaluating restrictions on types of weapons, and they leave open key questions such as what makes a weapon ‘tolerable,’ ‘dangerous,’ or ‘unusual.’”

He even directly targeted the Seventh Circuit Court of Appeals opinion that upheld Illinois’ gun and magazine restrictions. He called the opinion “absurd” and “out of touch with both text and history,” implying that he would overturn the lower court’s decision and declare the bans unconstitutional in a hypothetical future case.

“The Seventh Circuit Court of Appeals’ decision shows why this Court needs to provide more guidance on what weapons are covered by the Second Amendment,” he wrote. “In my view, Illinois’ ban is ‘highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes.’ It is difficult to understand how the Seventh Circuit Court of Appeals could have concluded that the most common semiautomatic rifles are not ‘weapons’ protected by the Second Amendment.”

He concluded his brief remarks with a stark warning to the Seventh Circuit as it considers the Illinois cases for final judgment and urged his fellow judges to remain vigilant on the issue.

“These motions arise out of a preliminary injunction, and the Seventh Circuit has emphasized that its merits analysis was only a ‘preliminary examination of the subject matter,’” he wrote. “But if the Seventh Circuit ultimately allows Illinois to ban the most common civilian rifle in the United States, we can—and should—revisit that decision once the cases reach final judgment. The Court should not allow the Seventh Circuit to ban the most common civilian rifle in the United States.” [to] relegate[e] “The Second Amendment is a second-class right.”

It is difficult to read Thomas' comments as anything other than a categorical statement that he considers the assault weapons ban, at least as codified in the state of Illinois, to be patently unconstitutional under the Second Amendment.

Of course, there remains the question of In fact get the court to agree to hear a material ban case. Since the petition for certiorari was refused This time, at least six judges are Currently not wanting to address the issue (four votes) are required (to grant certiorari). It is notable that no other justice concurred in Thomas' brief opinion regarding the Court's denial of certiorari in the Illinois cases. This may mean that Thomas' analysis of the legality of assault weapons bans is not shared by his peers at Court. After all, this wouldn't be the first time that Thomas went further In his interpretation of the Second Amendment, he was more comfortable with it than the rest of his fellow justices.

But there is reason to believe that at least some of the other conservative members of the Court are also interested in the issue. Justice Samuel Alito has noted that he would have voted to have the Illinois cases taken up in the upcoming session, though he has not chosen to write separately on the issue himself. Moreover, Justice Brett Kavanaugh has already expressed his thoughts on why an assault weapons ban violates the Second Amendment during his time on the D.C. Circuit in a proto-Bruen analysis of text, history and tradition.

Finally, Justice Thomas made an early and forceful challenge to a gun law that the Court declined to consider, only to have later His request, reviewed and upheld by his fellow judges, is not without precedent. He issued a dissenting opinion from the refusal in the 2017 case Peruta v. California on the weaknesses of the Golden State's licensing regime.

“The Court’s decision to deny certiorari in this case reflects a disturbing trend: the treatment of the Second Amendment as a disfavored right,” he wrote. “The framers of the Constitution made a clear choice: They reserved for all Americans the right to bear arms for self-defense. I do not believe we should stand by while a state denies that right to its citizens, especially when their lives may depend on it.”

Five years later, Thomas wrote the majority opinion in Bruen. The decision, taken by a vote of 6 to 3, invalidated the issuance of building permits as unconstitutional on a national scale.

In other words, while the Court may not be interested in overturning state-level material bans, the problem It might just be a matter of waiting for the right case at the right time. Even though it can be frustrating gun rights For advocates of the cause, this offers at least some hope of eventual victory.