Conservative Justices Welcome Assault Weapon Ban Challenges

Conservative justices all but invited additional gun rights cases and advocates will soon have multiple chances to try again for a constitutional right to own an AR-15.

In agreeing with the Supreme Court’s decision Monday to reject a Second Amendment challenge to Maryland’s ban on semiautomatic rifles, Justice Brett Kavanaugh said the issue will likely come before the court again shortly and listed five cases now making their way through the lower courts.

Kavanaugh’s list is only a small snapshot of the number of cases pending.

Firearms Policy Coalition, which was a party in one of the cases the justices rejected, said it has 10 lawsuits in various stages around the US challenging bans on so-called assault weapons, large capacity magazines, or related hardware.

“We have quite a bit of opportunities in front of us,” said Brandon Combs, who leads the nonprofit advocacy group that’s been aggressively litigating against gun laws. FPC led an unsuccessful challenge to federal regulations for build-at-home ghost gun kits earlier this term.

Next Bite

The Second Amendment Foundation, another party in the Maryland case, has a challenge to Connecticut’s ban on assault weapons that’s now before the US Court of Appeals for the Second Circuit. That’s in addition to the six cases it has with FPC challenging similar laws in other states.

Their challenge to Illinois’ ban on assault weapons, Harrel v. Raoul, now at the Seventh Circuit “will be the next bite at the apple,” said Adam Kraut, the group’s executive director.

The justices last year declined to review the Seventh Circuit’s refusal to issue a preliminary injunction and enjoin the law from being enforced. The case is now proceeding on the merits and final briefs are due at the end of June.

The National Association for Gun Rights said its legal wing is involved in five active lawsuits, two of which were cases Kavanaugh listed.

“We will continue banging on the door of the Supreme Court with case after case until they issue a ruling striking down gun and standard capacity magazine bans nationwide,” Hannah Hill, vice president of the National Association for Gun Rights, said in an emailed statement.

The volume of cases comes from the flood of litigation that’s followed the Supreme Court’s 2022 decision to expand the constitutional right to carry guns outside the home for self-defense in New York State Rifle & Pistol Association v. Bruen.

“One of the things gun rights groups immediately went after were what Brady considers to be weapons of war really in these assault weapons and large capacity magazines,” said Shira Feldman, director of constitutional litigation at Brady United Against Gun Violence.

Like Brady United, Everytown for Gun Safety advocates for laws that prohibit assault weapons and high-capacity magazines. Everytown for Gun Safety is backed by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

With states passing their own laws, Feldman said it’s not surprising there are a whole bunch of challenges being brought by different organizations.

Same Desire?

Ten states and D.C. ban assault weapons and 14 states and D.C. ban high capacity magazines, according to the Giffords Law Center to Prevent Gun Violence.

The justices on Monday also rejected a separate challenge to Rhode Island’s ban on those devices that feed a large amount of ammunition. Though Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch said they would have heard the case, there weren’t separate writings on the court’s decision to turn away the case.

Kavanaugh’s comments welcoming new challenges were only in response to the court’s refusal to consider the constitutionality of Maryland’s ban on so-called assault weapons.

“Opinions from other Courts of Appeals should assist this Court’s ultimate decisionmaking on the AR–15 issue,” he said.

But Kraut said Thomas rightly noted in his dissent in that case on Monday that circuit courts continue to deny the Supreme Court’s Second Amendment precedent in these challenges to these state bans on assault weapons.

“I’m not sure there’s a lot of value in continuing to allow lower courts to just run amok,” he said.

Some of the challenges pending also challenge state bans on large capacity magazines or have been consolidated with separate challenges to those laws. That was not the case in the separate suits rejected by the court on Monday. The Maryland case only challenged the state’s ban on assault weapons and the Rhode Island case solely dealt with large capacity magazines.

From Kavanaugh and Thomas’ writing there seems to be a real desire to address whether states can ban assault weapons under the Second Amendment, said Andrew Willinger, executive director of the Duke Center for Firearms Law.

“I’m not sure there’s quite the same desire to address the large capacity magazine question and the justices might divide differently as to that question,” he said. “For assault weapons, AR-15s, I think you pretty clearly have four justices saying we don’t think these laws can stand.”