With Monday’s announcement that the Supreme Court had passed on hearing cases involving Maryland and Rhode Island restrictions on firearms (Maryland’s “assault weapons” ban and Rhode Island’s magazine capacity restrictions), response from the Second Amendment organizations was, putting it mildly, heated.
While the 2A groups decried the decision, it’s also worth noting that the three justices who wanted to hear the cases (Alito, Gorsuch and Thomas) weren’t happy either.
They realize both the cases in question–and several others working through the courts–will eventually demand a decision by the high court. Monday’s denial of cert isn’t rendering clarity on legal issues. That, essentially, is the Supreme Court’s only job.
The decision absolutely qualifies as controversial. In fact, Justice Brent Kavanaugh, who deigned to vote in favor of hearing the cases, admitted that with the many challenges to AR-style firearms in lower courts “this Court should and presumably will address the AR-15 issue soon.”
The NSSF said they must “respectfully disagree with Justice Kavanagh’s statement respecting the denial of cert in the Snope case that the Court should wait a “Term or two” before taking action to stop the lower courts from misapplying the Court’s holding Heller and Bruen to deny the Second Amendment rights of millions of law-abiding Americans living in the states that have enacted laws banning MSRs and magazines.”
Before Monday’s unexpected announcement, the 2A community was more than slightly confident that Snope v. Brown, the case contesting the Maryland AR-ban, represented more than a sufficient infringement on the Second Amendment to merit not only a hearing, but a decision overturning the law passed shortly after Sandy Hook.
Ditto Ocean State Tactical v. Rhode Island on the matter of magazine capacity restrictions.
While the high court’s avoidance of both leaves one wondering what the remaining justices are thinking, there’s no doubt about what 2A groups think.
The Second Amendment Foundation called the decision “an egregious error that sidesteps addressing an important issue which requires the court’s intervention.”
The Firearms Policy Coalition was even more direct, writing “We are disappointed that some members of the Supreme Court did not have the judicial courage to do their most important job and enforce the Constitution.”
Inside the court, Justice Clarence Thomas was nearly as direct in his dissent: "I would not wait to decide whether the government can ban the most popular rifle in America," he wrote. "That question is of critical importance to tens of millions of law-abiding AR-15 owners throughout the country.” Thomas’ reasoning is exactly opposed to the“reasoning” Justice Brent Kavanaugh used in not voting to hear the cases.
Kavanaugh wants lower courts to consider “other issues,” saying they could help the Supreme Court’s “ultimate decision-making on the AR-15 issue.” That sounds more like a politician sticking a finger up in the wind than a supreme court justice. And it’s not a good look, especially when Kavanaugh’s “term or two” dithering contradicts judges from those lower courts.
They have indicated- repeatedly - they need guidance, not avoidance, on correctly interpreting the high court’s decidedly fuzzy 2A rulings.
Chief Judge Albert Diaz of the Fourth Circuit described the high court’s rulings on interpretation of the Second Amendment “a labyrinth for lower courts…with only a one dimensional history-and-tradition test as a compass.” Lower courts, Diaz writes, need more help rather than “shifting through the sands of time.”
The Roberts Court, at least in part, seems quite content to force the lower courts to continue searching for those grains of truth, especially if it helps them avoid deciding another Second Amendment case.
Meanwhile, as the Supreme Court dithers, Rhode Island residents with magazines holding more than ten rounds and Maryland residents owning one of the myriad of “assault rifles” banned following the Sandy Hook shooting, face real felony charges. Charges that aren’t applicable to every citizen of the United States.
Laws, when undecided, really represent justice denied. Further, the reluctance to hear any 2A case gives credence to an argument that “the Roberts Court” is more concerned with “optics” than interpreting the law.
This time, there’s no arguing they’re simply kicking the can down the road.
We’ll keep you posted.
— Jim Shepherd
