No, SCOTUS didn’t just rule against gun rights

Today it’s often difficult to determine when the mainstream media is being deliberately deceptive or is just incompetent. Whatever the case may be, they are routinely wrong.

Take for instance a recent ABC News headline reporting that the U.S. Supreme Court upheld the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ (ATF) bump-stock ban:

Supreme Court upholds bump stock ban in big win for gun safety advocates

The Supreme Court did no such thing.

In December 2018, the ATF published a final rule amending the code of federal regulations to declare that items colloquially known as bump-stocks fall under the definition of “machineguns” as defined in the National Firearm Act. As these items were not registered prior to when the federal government froze the sale of new machineguns in 1986, the rule made bump-stocks contraband.

Gun rights proponents across the country took exception to what many perceived as impermissible executive branch law-making. As a result, several cases challenging the new rule were filed in federal court. Rather than concerning the Second Amendment, at issue in these cases is the permissible scope of administrative rule-making and the extent to which administrative agencies should or should not be given deference in interpreting criminal statutes.

In the case Aposhian v. Garland, the U.S. Court of Appeals for the Tenth Circuit upheld the ATF rule, at which point the plaintiffs petitioned the U.S. Supreme Court to take the case in August 2021. Similarly, in Gun Owners of America, Inc. v. Garland, the U.S. Court of Appeals for the Sixth Circuit upheld the ATF rule, prompting the plaintiffs to petition the Supreme Court in March 2022. On October 3, the Supreme Court declined to hear either case.

First, denying cert in a case is not a ruling on the merits of that case. The decision not to take a case is not an explicit endorsement of a lower court’s ruling. In his dissent in Darr v. Burford (1950) Justice Felix Frankfurter explained,

The significance of a denial of a petition for certiorari ought no longer to require discussion. This Court has said again and again and again that such a denial has no legal significance whatever bearing on the merits of the claim. The denial means that this Court has refused to take the case. It means nothing else.

Second, there is good reason in this instance why the Supreme Court may want to take a wait and see approach to how the law in this area develops in the lower federal courts.

At present, another bump-stock case, Cargill v. Garland, is making its way through the U.S. Court of Appeals for the Fifth Circuit. In December 2021 the Fifth Circuit upheld the ATF rule in this case. However, following a petition by the plaintiff, in June the Fifth Circuit agreed to hear the case en banc (in front of the full court, rather than just a panel of circuit court judges).

Could the Supreme Court be waiting on the Fifth Circuit to rule en banc before entertaining a bump-stock case? That is a distinct possibility. What isn’t is that the Supreme Court has made a ruling on the merits of these important cases. Reporters should know better.