Some good, but mostly bad news<\/p>\n
BLUF
\nThe real question is what will the Court do with the gun and magazine ban cases in the new year? We’re getting to the point in the Court’s term that any case they decide to take up would most likely be heard next fall.<\/p>\n
Supreme Court Turns Away Challenges to National Firearms Act<\/a><\/p>\n The Supreme Court didn’t grant cert to any Second Amendment cases in its orders list released on Monday, but they did keep ahold of several challenges to state-level gun and magazine bans as well as several prohibited persons cases.<\/p>\n The justices also denied cert to a pair of challenges to the National Firearms Act’s restrictions on short-barreled rifles, as well as the appeal of a Pennsylvania father who was hoping to revive a lawsuit against a gun maker and gun seller holding them civilly liable for the death of his son.<\/strong><\/p>\n Robinson v. U.S.\u00a0<\/em>and\u00a0Rush v. U.S\u00a0<\/em>had drawn attention from a number of Second Amendment groups including Gun Owners of America and Second Amendment Foundation, which filed amicus briefs in support of the cert petitions urging the Court to take one or both cases. The groups obviously were hoping that the Supreme Court would declare that short-barreled rifles are arms protected by the Second Amendment, but also pointed out multiple flaws in the rationale deployed by lower courts in upholding the NFA’s restrictions.<\/p>\n The\u00a0brief<\/a>\u00a0filed by GOA and a number of state-level 2A groups in\u00a0Robinson,\u00a0<\/em>for instance, noted the lower courts’ description of the NFA as a “shall issue” licensing system akin to concealed carry regimes.<\/p>\n <\/p>\n Likening the NFA\u2019s ban o nunregistered possession to a \u201cshall-issue licensing regime[]\u201d for carry, the panel was willing to invent a theory of conclusive constitutionality based on this Court\u2019s refusal to \u201csuggest \u2026unconstitutionality\u201d in an inapposite case.\u00a0<\/em>Not only does that approach contravene Bruen\u2019s methodological holding, but also it misreads the NFA which, by its plain terms, is not a \u201cshall-issue licensing regime.\u201d Rather, the statutory provision the panel cited, 26 U.S.C. \u00a7 5812(a), provides that \u201c\u2018[a]pplications shall be denied if the transfer, receipt, or possession of the firearm would place the transferee in violation of law.\u2019\u201d The related statutory provision on \u201cmaking\u201d NFA firearms is similarly worded. Of course, these provisions contain no directive that applications \u201cshall be approved\u201d if an applicant meets the statutory criteria. Rather, they simply direct what must happen if an applicant is ineligible. As the D.C. Circuit once explained, \u201c[b]oth sections provide that applications \u2018shall be denied[,]\u2019 \u2026 but neither restricts the Secretary\u2019s broad power to grant or deny applications in any other respect.\u201d \u201cBroad power to grant or deny\u201d is irreconcilable with the \u201c\u2018narrow, objective, and definite standards\u2019 guiding licensing officials\u201d in quintessentially \u201cshall-issue\u201d licensing regimes.<\/p><\/blockquote>\n The brief went on to point out that there’s a circuit court split on the description of the NFA as a “shall issue” scheme, but apparently the justices are willing to let that split develop before taking up an NFA case.<\/p>\n The 2A groups also argued that the lower courts are misapplying the\u00a0Miller\u00a0<\/em>decision from the 1930s. The Second Amendment Foundation’s\u00a0brief<\/a>\u00a0in\u00a0Rush,<\/em>\u00a0joined by the 2A Law Center and several other pro-2A organizations, contended that\u00a0Miller\u00a0<\/em>is no longer controlling after the\u00a0Bruen\u00a0<\/em>decision, but even if its still legally valid “the Petitioner should have prevailed below under its framework too.”<\/p>\n In its own way, United States v. Miller implicitly confirmed that the Second Amendment recognizes an individual right, because \u201c[h]ad the [Miller] Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen.\u201d Miller ultimately concluded only that \u201cin the absence of any evidence tending to show that possession or use of a \u2018shotgun having a barrel of less than eighteen inches in length\u2019 at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.\u201d<\/p>\n Here, there is no such absence of evidence. Not only are many SBRs combat arms of the kind that would be useful to a militia, but they are the main firearm in that role; the M4 carbine is our military\u2019s most common service rifle, and it has a barrel length of 14.5 inches. In the civilian context, where it would be sold in a semiautomatic form, that would make the most common military rifle an SBR subject to the NFA\u2019s tax, which applies to rifles that have barrels under 16 inches in length.<\/p><\/blockquote>\n Both briefs make good arguments in favor of the Court granting cert, but as I wrote last week, I don’t think SCOTUS is going to take up an NFA case before it decides the constitutionality of bans on semi-automatic rifles like the AR-15 and “large capacity” magazines. And to that end, the justices took no action today on\u00a0Gator’s Custom Guns v. Washington<\/em>,\u00a0Duncan v. Bonta<\/em>, or\u00a0Viramontes v. Cook County<\/em>; all cases challenging semi-auto and magazine bans. Those cases, along with the three cases challenging the ban on gun possession for those convicted of a crime punishable by more than a year in prison, will most likely be relisted later today for the Court’s next conference scheduled for January 9, 2026.<\/p>\n There are already a trio of 2A-related cases calendared for discussion at that conference;\u00a0Schoenthal v. Raoul<\/em>‘s challenge to the concealed carry ban on public transportation in Illinois and Chicago,\u00a0Marquis v. Massachusetts\u00a0<\/em>(which asks “whether Massachusetts\u2019 firearms licensing regime, which grants a police colonel the power to deny any nonresident traveler a temporary firearms license based upon that officer\u2019s judgment of \u201cunsuitability,\u201d violate nonresident travelers\u2019 constitutional rights to keep and bear arms and to interstate travel”), and\u00a0Harris v. United States<\/em>.<\/p>\n That last case is another 922(g)(3) challenge to the ban on gun ownership for “unlawful” users of drugs. The Court has already granted cert to another 922(g)(3) case in\u00a0Hemani<\/em>, and I suspect that the justices will simply hold on to\u00a0Harris\u00a0<\/em>until\u00a0Hemani\u00a0<\/em>has been decided.<\/p>\n The real question is what will the Court do with the gun and magazine ban cases in the new year? We’re getting to the point in the Court’s term that any case they decide to take up would most likely be heard next fall. Last term Justice Brett Kavanaugh predicted that SCOTUS would take up a hardware ban case “in the next term or two”, and the trio of gun and magazine ban lawsuits give the Court the opportunity to do just that<\/p>\n","protected":false},"excerpt":{"rendered":" Some good, but mostly bad news BLUF The real question is what will the Court do with the gun and magazine ban cases in the new year? We’re getting to the point in the Court’s term that any case they decide to take up would most likely be heard next fall. Supreme Court Turns Away … 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-113898","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\/113898","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=113898"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/113898\/revisions"}],"predecessor-version":[{"id":113901,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/113898\/revisions\/113901"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=113898"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=113898"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=113898"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}