{"id":112936,"date":"2025-10-28T16:49:02","date_gmt":"2025-10-28T21:49:02","guid":{"rendered":"https:\/\/milesfortis.com\/?p=112936"},"modified":"2025-10-28T16:49:02","modified_gmt":"2025-10-28T21:49:02","slug":"112936","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=112936","title":{"rendered":""},"content":{"rendered":"

The ‘Assault Weapon’ Ban That SCOTUS Could Strike Down This Term<\/a><\/p>\n

Last June, when the Supreme Court denied cert to a lawsuit challenging Maryland’s ban on so-called assault weapons and large capacity magazines called\u00a0Snope v. Brown<\/em>, Justice Brett Kavanaugh predicted that the court would take up the issue “in a term or two.” There are pending decisions in the Third and Seventh Circuits addressing similar bans in Illinois and New Jersey, but by the time the opinions are released and cert petitions are filed, it’s almost impossible that SCOTUS could accept either case and issue a decision before their summer recess in June, 2026.<\/p>\n

There is, however, a challenge to California’s magazine ban that is already pending review by the Supreme Court.\u00a0Duncan v. Bonta\u00a0<\/em>is slated to be considered in the Court’s November 21 conference, so that would be one vehicle for the justices to address these bans sooner rather than later. And, waiting in the wings, there’s another case out of the Seventh Circuit dealing with bans on “assault weapons” that the Court could also take this term.<\/p>\n

Viramontes v. Cook County\u00a0<\/em>is a Firearms Policy Coalition\/Second Amendment Foundation challenge to Cook County, Illinois’ ban on commonly owned semi-automatic firearms, and it’s been fully briefed and decided on the merits at the Seventh Circuit Court of Appeals, which upheld the ban in question. FPC and SAF filed its cert petition with the Supreme Court in late August, and Cook County’s reply is due on Wednesday, October 29.<\/p>\n

The plaintiffs will have to file a reply brief, but that shouldn’t take too long, and it’s entirely possible that the Court could start its debate over granting cert before the end of year. If they accept the case, oral arguments would take place in the spring, and a decision could come down by the end of this term.<\/p>\n

In their\u00a0cert petition<\/a>, the plaintiffs argue that SCOTUS “has frequently been solicitous of circuit court judges who are in apparent need of help in parsing this Court\u2019s precedents,” noting that last term the Court granted cert to a case called\u00a0Medina v. Planned Parenthood South Atlantic<\/em>, in response to \u201ccalls for clarification\u201d and concern from circuit judges that they \u201ccontinued to lack the guidance\u201d to implement this Court\u2019s precedents regarding the enforceability of certain federal statutes.<\/p>\n

Lower courts, the plaintiffs contend, are equally in need of clarification on what constitutes “arms in common use for lawful purposes” and “dangerous and unusual” weapons that fall outside the scope of the Second Amendment’s protections.<\/p>\n

After this Court repudiated the courts of appeals\u2019 interest-balancing regime in\u00a0Bruen<\/em>, courts, like the Seventh Circuit here, have expressed confusion and consternation at \u201cwhat exactly falls within the scope of \u2018bearable\u2019 Arms\u201d as a matter of plain text.<\/p>\n

The Seventh Circuit\u2019s reading of the Amendment to exclude arms that the court judges \u201ccan be dedicated exclusively to military use\u201d from the scope of the term \u201carms\u201d at all is just one manifestation of the confusion.<\/p>\n

The Second Circuit very recently joined the chorus. In fact, it declined to decide whether \u201cassault weapons\u201d were \u201carms\u201d at all, \u201cprefer[ring] not to venture into an area in which such uncertainty abounds\u201d when, it concluded, it could resolve the case (it thought) through application of the historical analysis.<\/p>\n

The scope of that \u201cuncertainty\u201d for the Second Circuit was remarkable. It noted that it viewed \u201ccommon use\u201d as part of the plain text analysis, but it complained \u201cthe Supreme Court has not made clear how and at what point in the analysis we are to consider whether weapons are unusually dangerous.<\/p>\n

Nor has the Court clarified how we are to evaluate a weapon\u2019s\u2018 common use.\u2019” In its view, \u201c[t]he Court\u2019s opinions may reasonably be read\u201d in contradictory ways, and this \u201clack of clarity has led to disagreement among the parties in this case and confusion among courts generally.\u201d<\/p><\/blockquote>\n

The plaintiffs go on to argue that under the Seventh Circuit’s opinion, the Second Amendment permits “anything short of a complete ban on all firearms,” except for the handguns that the Court explicitly stated are protected in\u00a0Heller<\/em>.<\/p>\n

The Seventh Circuit\u2019s test is even more toothless in this regard than the old interest balancing regime. Before\u00a0Bruen<\/em>, courts would at least purport to scrutinize modern laws to ensure there was some relationship between a ban and the aims of public safety. Not so here.<\/p>\n

Under the decision below\u2014and the circuit precedent on which it relies\u2014\u201cthe plaintiffs\u201d in a Second Amendment case, \u201chave the burden of showing that the weapons addressed in the pertinent legislation are Arms that ordinary people would keep at home for purposes of self-defense, not weapons that are exclusively or predominantly useful in military service, or weapons that are not possessed for lawful purposes.\u201d If they cannot make that showing\u2014perhaps because precisely what is \u201cpredominantly useful in military service\u201d is a malleable and ill-defined standard\u2014then the restriction challenged gets no scrutiny whatsoever.<\/p><\/blockquote>\n

Now, I have no idea if the Court will grant cert to Duncan<\/em> and Viramontes\u00a0<\/em> or pass them over while the justices wait for other gun and magazine ban cases to reach their doorstep. There’s anticipation that the Third Circuit will strike down New Jersey’s ban on “assault weapons,” which would create a circuit court split that, theoretically anyway, would make the issue more compelling to SCOTUS. But the justices don’t\u00a0have\u00a0<\/em>to wait until there’s split to take up an issue, and if the Court grants cert to both\u00a0Duncan\u00a0<\/em>and\u00a0Viramontes\u00a0<\/em>it can address both semi-auto and magazine bans this term instead of kicking the can down the road for another term or two.<\/p>\n","protected":false},"excerpt":{"rendered":"

The ‘Assault Weapon’ Ban That SCOTUS Could Strike Down This Term Last June, when the Supreme Court denied cert to a lawsuit challenging Maryland’s ban on so-called assault weapons and large capacity magazines called\u00a0Snope v. Brown, Justice Brett Kavanaugh predicted that the court would take up the issue “in a term or two.” There are … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,8],"tags":[],"class_list":["post-112936","post","type-post","status-publish","format-standard","hentry","category-courts","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/112936","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=112936"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/112936\/revisions"}],"predecessor-version":[{"id":112937,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/112936\/revisions\/112937"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=112936"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=112936"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=112936"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}