The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Justice Kavanaugh to Second Amendment: We're Really Busy Now, Come Back In A Year Or Two
"Additional petitions for certiorari will likely be before this Court shortly and, in my view, this Court should and presumably will address the AR–15 issue soon, in the next Term or two."
On December 1, 2020, the Maryland ban on AR-15s was challenged. The plaintiffs lost in the District Court and before the Fourth Circuit. In August 2024, a cert petition was filed in Snope v. Brown. The petition sat in purgatory for nearly a year with fourteen relists.
Today, the Supreme Court finally put the petition out of its misery and denied cert. Justices Thomas, Alito, and Gorsuch would have granted. Justice Barrett, as usual said nothing. Justice Kavanaugh wrote a very unusual statement respecting the denial of the petition. The first two paragraphs explain why the Maryland decision was "questionable." If you read these parts, you would expect a grant. Indeed, Kavanaugh as circuit judge had found that the District of Columbia's ban on AR-15s was unconstitutional. But then, we get to the last paragraph:
In short, under this Court's precedents, the Fourth Circuit's decision is questionable. Although the Court today denies certiorari, a denial of certiorari does not mean that the Court agrees with a lower-court decision or that the issue is not worthy of review. The AR–15 issue was recently decided by the First Circuit and is currently being considered by several other Courts of Appeals. See Capen v. Campbell, 134 F. 4th 660 (CA1 2025); see also, e.g., National Assn. for Gun Rights v. Lamont, 685 F. Supp. 3d 63 (Conn. 2023), appeal pending, No. 23–1162 (CA2); Association of N. J. Rifle & Pistol Clubs, Inc. v. Platkin, 742 F. Supp. 3d 421 (NJ 2024), appeal pending, No. 24–2415 (CA3); Viramontes v. County of Cook, No. 1:21–cv–4595 (NDIll., Mar. 1, 2024), appeal pending, No. 24–1437 (CA7); Miller v. Bonta, 699 F. Supp. 3d 956 (SD Cal. 2023), appeal pending, No. 23–2979 (CA9). Opinions from other Courts of Appeals should assist this Court's ultimate decision making on the AR–15 issue. Additional petitions for certiorari will likely be before this Court shortly and, in my view, this Court should and presumably will address the AR–15 issue soon, in the next Term or two.
My mouth nearly hit the floor when I read this. Kavanaugh all-but signals that he will be a fourth vote to grant cert. He does not identify any vehicle problems, or reasons why the Maryland petition should not be granted. Does he really think that rulings from the Ninth Circuit will help much in the deliberations? These courts will all rule against the Second Amendment. Nothing is in doubt. The upshot is that the Court is really busy with other stuff right now, and you all should just come back later. The Second Amendment could take a sabbatical for a year or two until the docket lightens up. Indeed, this case has been pending for nearly four years. Maryland gun owners will just have to chill.
Of late I've been praiseworthy of some of Kavanaugh's actions, but this is the sort of Kavanaugh opinion that infuriates me. And where is Justice Barrett on these issues? A decade ago in 2015, Justice Scalia dissented from denial of cert in Friedman v. Highland Park, a challenge to an assault weapon ban. This issue isn't new. I think this term will be remembered as the term in which Justice Barrett's slide became indisputable. I started tracking it years ago, but it is hard to ignore now.
