NSSF Agrees That SCOTUS Will Need to Take Up State-Level Gun Bans

There are a lot of people miffed about SCOTUS punting on the Snopes case. The fact that they sent it back to committee 4,392 times before denying cert just made it that much worse for me, but it was never going to be a pleasant thing to see it denied.

Now, we’re trying to forge our path forward with what’s available to us.

Yet Justice Brett Kavanaugh said the Court would take up such a case in the next term or two. This is, I guess, an olive branch to folks like us or something like that, but I’m still incredibly disappointed by the decision.

They will need to hear such a case, though, as the NSSF noted at their site:

The U.S. Supreme Court finally answered the question of whether it will address the issue of states banning entire classes of firearms for ownership by law-abiding citizens. Unfortunately, the answer – for now at least – is “not yet.”

That’s frustrating, for sure. And not just for the plaintiffs in both Snope v. Brown and Ocean State Tactical v. Rhode Island. Those were the two cases challenging state prohibitions on the sale and possession of Modern Sporting Rifles (MSRs) and standard capacity magazines, respectively, that were petitioned to the Supreme Court. The Court denied certiorari for both cases, but not all justices were on board. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch would have granted both petitions and taken up the issue of whether these hardware bans violate the Second Amendment. Justice Brett Kavanaugh voted to deny the Snope petition but warned that the Court is going to have to answer the questions – and do so rather soon.

…

At least Justice Kavanaugh, despite agreeing with the Court’s decision to deny certiorari, wrote his own statement to explain his reasoning. “Although the Court today denies certiorari, a denial of certiorari does not mean that the Court agrees with a lower-court decision or that the issue is not worthy of review,” Justice Kavanaugh wrote. “The AR–15 issue was recently decided by the First Circuit and is currently being considered by several other Courts of Appeals. Opinions from other Courts of Appeals should assist this Court’s ultimate decision making on the AR–15 issue. Additional petitions for certiorari will likely be before this Court shortly and, in my view, this Court should and presumably will address the AR–15 issue soon, in the next Term or two.”

In short, Justice Kavanaugh appears to agree with Justice Thomas’s view that waiting more than a decade to address the lawful ownership of the most popular-selling semiautomatic centerfire rifle is likely long enough. The question needs to be answered, and we hope that Justice Kavanaugh’s prediction that the Court will take up the issue in the near term is correct. The Supreme Court cannot allow lower courts to continue to flagrantly ignore the precedent of Heller and Bruen and treat the Second Amendment as a second-class right.

The NSSF’s chief litigation counsel, Shelby Baird Smith, argues that the Fourth Circuit used an interest balancing test on the Maryland assault weapon ban, which is not what is laid out by Bruen, which created the history, text, and tradition standard. That’s what should have been applied in Snopes and what the Court should have upheld when they heard the case.

They didn’t, though, and they won’t. Not on this one, and that’s a big issue.

At some point, the Court will need to do something because this is happening more and more often. Rahimi didn’t clarify anything. It muddied the waters even more, because now judges who try to adhere to Bruen have to wonder how close of an analog is close enough.

But the Fourth Circuit didn’t even do that. What’s more, they got away with it because the Supreme Court couldn’t be bothered to uphold their own ruling.

Sooner or later, though, there won’t be much of a choice.

I guess promises were made, and if those promises are kept, then we’re hopefully going to see these state-level bans fall apart. However, they’ll need to do it sooner, rather than later, because if they don’t, we’re going to have even more problems as states start to believe the Bruen decision was something the Supreme Court didn’t really mean.