The Supreme Court keeps remanding Second Amendment cases for reconsideration under Rahimi, and the lower courts keep sending them back unchanged. What is going on?

On Thursday, a Second Circuit panel became the third appeals court to revisit a gun case the High Court granted, vacated, and remanded (GVR). They were also the third to return with the same decision as before. Rahimi didn’t change a thing in any of them.

In Antonyuk v. James, the panel unanimously reaffirmed themselves.

“Having reconsidered the prior decision in light of Rahimi, and the parties’ supplemental briefing regarding the effect of that decision on our reasoning in this case, we now issue a revised opinion in Antonyuk,” the panel wrote. “We reach the same conclusions that we reached in our prior consolidated opinion.”

In late August, an Eighth Circuit panel did the same.

“We begin with the Second Amendment challenge, which is back before us on
remand after United States v. Rahimi,” the panel wrote in US v. Doss. “In Doss’s view, the federal statute criminalizing possession of firearms by felons, 18 U.S.C. § 922(g)(1), is unconstitutional after New York State Rifle & Pistol Ass’n v. Bruen, both on its face and as applied to him. We have already rejected this argument in two recent cases. Together, they spell the end for Doss’s constitutional challenge.”

A few weeks before that, a different Eighth Circuit panel started the trend.

“The case is now on remand from the Supreme Court for further considerationin light of United States v. Rahimi. Rahimi held that 18U.S.C. § 922(g)(8), the federal prohibition on possession of a firearm while subject to a domestic violence restraining order, is constitutional on its face,” the panel wrote in US v. Jackson. “Rahimi does not change our conclusion in this appeal, and we again affirm the judgment of the district court.”

All three of them denied challenges to gun laws. Two of them expounded on why they thought Rahimi reinforced their initial rulings.

In Doss, the panel saw a parallel between Rahimi‘s violent history and Doss‘s background that they argued would doom his case even if it were considered under a lower, as-applied standard.

“Even if he could bring an as-applied challenge, he would not succeed,” the panel wrote. “His lengthy criminal record includes over 20 convictions, many of them violent. It is safe to say that Doss’ pose[s] a credible threat to the physical safety of others.'”

The Antonyuk court went further and tried pinpointing a broader principle from Rahimi.

“[R]ahimi strongly suggests that what matters in the search for historical antecedents of modern firearms regulations is the substance of the regulation, rather than the form,” it said.

That may be a reasonable takeaway from Rahimi, but it isn’t much more specific than or different from the same court’s takeaway from Bruen. Even in cases that haven’t been GVRd, lower courts don’t seem to be coming out much differently than before Rahimi was handed down. So, it may strike some as odd that the Court keeps doing this with every Second Amendment case.

There are a few reasons the Court may be going this route.

The easiest and, perhaps, likeliest explanation is the Court just doesn’t want to get ahead of itself. It doesn’t want to settle more Second Amendment cases until its ruling in Rahimi has percolated through the lower courts. It may want to ensure any case it takes has already seen all of its precedents incorporated into it, with a fully developed record that includes whatever insights the lower courts have to offer.

The other possibility is that the High Court thinks Rahimi is more significant than the lower courts seem to believe. It may be GVRing all these cases with the expectation they’ll come back with different results or, at least, different reasoning. Maybe the justices are unhappy with how little insight the lower courts see in their latest Second Amendment ruling.

It’s impossible to say for sure since the High Court hasn’t said much of anything about why it’s issuing these GVRs. In fact, it just issued another this week.

If the Supreme Court is merely trying to keep its docket tidy, then the only Second Amendment cases with any realistic chance of being heard are the ones that have already taken Rahimi into account. Given the narrow nature of the ruling and how lower courts have reacted to it thus far, that would probably just result in a bit of a delay as activists shift to pushing post-Rahimi test cases to the forefront.

If the Court is using these GVRs to send a message that it doesn’t think lower courts are reading enough into Rahimi, it will probably eventually take up one of those cases in order to make themselves clearer. That could happen sooner rather than later now that there are a few options to choose from on that front.

For now, things may continue on this way for a while. Expect more GVRs from the Supreme Court and more shrugs from the lower courts.