SCOTUS Still Silent on Challenge to Semi-Auto Ban

The Supreme Court could still decide to hear Snope v. Brown, the lawsuit challenging Maryland’s ban on so-called assault weapons, but the prospect of the justices taking up the case this year has dimmed considerably after Friday’s order list was released with nary a mention of the gun ban case. 

Don’t bother. Too late. SCOTUS won’t grant cert in any case on Monday. Tonight was our last shot this term.

— Mark W. Smith/#2A Scholar (@fourboxesdiner) January 24, 2025

SCOTUS could still accept both the Maryland “assault weapon” ban case and Ocean State Tactical v. Neronha, which is a challenge to Rhode Island’s prohibition on “large capacity” magazines, but no court-watcher that I’ve seen expects the justices to grant cert to any more cases on Monday. There is, however, a slight possibility that we could get an opinion in one or both cases without having to go through briefs and oral arguments. 

No news on Snope in today’s miscellaneous order list which granted cert on likely the last batch of cases which will be heard this term. So on Monday, it and Ocean State Tactical will either be denied, or relisted. Per curiam is also a (remote) possibility.

If Snope is granted…

— Kostas Moros (@MorosKostas) January 24, 2025

Could we really see a per curium opinion holding Maryland’s gun ban (or Rhode Island’s magazine ban) unconstitutional? Anything’s possible I guess, and Justices Kagan and Sotomayor did sign on to the ruling in Caetano v. Commonwealth of Massachusetts that held stun guns were protected by the Second Amendment, even though they were not in common use at thte time of the Founding and are unusual in nature. 

Just from a consistency standpoint Kagan and Sotomayor should find the same true for semi-automatic firearms, which are far more common than stun guns, but in order to get a per curium opinion the Court would have to be unanimous, and I’m having a difficult time imagining Justice Ketanji Brown Jackson agreeing that semi-auto bans (and/or bans on magazines that can accept more than ten rounds) are facially unconstitutional. 

If the Supreme Court does take a pass on Snope it will be a bitter pill for gun owners to swallow. We’ve been told that the Court didn’t to take up any 2A cases until they were fully decided on the merits. Well, Snope has been decided on the merits, but was also subject to some judicial shenanigans in the Fourth Circuit, which should make the Court even more eager to step in. Before a three-judge panel on the Fourth issued its decision striking down Maryland’s ban, the Fourth Circuit decided to preemptively take the case en banc, leaving the panel’s decision unpublished and irrelevant in the judicial record. The en banc panel then spuriously argued that Maryland’s ban on semi-automatic long guns is perfectly fine because those arms aren’t protected by the Second Amendement. No, they’re too much like machine guns, and are dangerously unusual in nature. 

If there aren’t five votes on the Supreme Court to reject that nonsensical argument then the Second Amendment is in a very tenuous place despite Heller, McDonald, and Bruen. 

If Snope is ultimately denied, we need to line up Second Amendment NFA challenges in the Fifth Circuit and any other favorable circuits.

Machine guns, SBRs, suppressors, whatever it may be. Need to generate a circuit split on what constitutes a protected “arm” if that is the…

— Kostas Moros (@MorosKostas) January 24, 2025

That might be a sound strategy, but it’s also going to take at least a couple of years to execute. Frankly, that’s too depressing for me to think about on a relatively beautiful Saturday. I’m going to keep my fingers crossed for a per curium opinion or a grant on Monday. Even if the Court kicks the issue down the road to 2026, that’s better than not hearing it at all.