In a recent ruling upholding Maryland’s ban on so-called assault weapons, a federal appeals court gave gun-rights advocates their best opportunity yet to entice the Supreme Court to strike down those bans nationwide. Whether the Justices are prepared to oblige them is another matter entirely.

In a divided opinion last week, the en banc Fourth Circuit Court of Appeals delivered its long-awaited judgment of Maryland’s ban on AR-15s and other semi-automatic weapons. By a ten-to-five margin, the court’s majority upheld the ban.

“The assault weapons at issue fall outside the ambit of protection offered by the Second Amendment because, in essence, they are military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense,” Judge Harvie Wilkinson wrote in Bianchi v. Brown.

Rather than greet the preservation of one of the movement’s longest-standing targets with dejection, some gun-rights advocates celebrated the outcome. Pro-gun attorney and legal commentator Mark Smith called the ruling “100% expected” and “excellent news for [the Second Amendment]” in a social media post.

“It should be a clear glide path to SCOTUS for them to hear an ‘assault weapon’ ban case next term (2024-25),” he reasoned.

Indeed, such optimism is not entirely unwarranted.

The Fourth Circuit’s decision is a final ruling on the merits of an assault weapon ban from an en banc federal appellate court. That means there’s simply no other legal venue left for the case to go on appeal other than to the Supreme Court. The issue of final judgments versus interlocutory appeals has been a problem for gun-rights activists of late. The Supreme Court has consistently declined to get involved in a ban case before the lower courts could reach a merits decision. Most recently, the Court rejected a Seventh Circuit case covering the Illinois assault weapon ban.

“This Court is rightly wary of taking cases in an interlocutory posture,” Justice Thomas wrote in a brief opinion appended to the Court’s denial of cert in that case.

With the new Bianchi decision, that prior hurdle has now been cleared.

Furthermore, two members of the Court’s conservative majority are already on board with reviewing hardware bans. Justice Samuel Alito noted that he would have voted to take up the Illinois gun ban case last month, and Thomas expanded his brief opinion to express his desire for the Court to address the question as soon as a more appropriate opportunity arises.

“I hope we will consider the important issues presented by these petitions after the cases reach final judgment,” he wrote. “We have never squarely addressed what types of weapons are ‘Arms’ protected by the Second Amendment.”

Thomas went even further by strongly suggesting that Illinois’ gun ban, which is similar (though not identical) to Maryland’s, is likely unconstitutional.

“If the Seventh Circuit ultimately allows Illinois to ban America’s most common civilian rifle, we can—and should—review that decision once the cases reach a final judgment,” he wrote. “The Court must not permit ‘the Seventh Circuit [to] relegat[e] the Second Amendment to a second-class right.'”

The Maryland case’s procedural history also makes it a particularly compelling case for the Court to consider taking. It was already presented to the Justices once before in 2021 after the Fourth Circuit previously upheld the state’s ban. The Supreme Court ultimately opted to grant, vacate, and remand (GVR) that decision back to the Fourth Circuit after its New York State Rifle and Pistol Association v. Bruen ruling in 2022, which created a new test for Second Amendment cases.

A three-judge panel for the Fourth Circuit reheard the case on remand in December of 2022 but stayed silent on the matter for more than a year after that. Then, earlier this January, a majority on the Fourth Circuit suddenly voted to take the case en banc without the panel ever issuing a decision. According to Judge Julius Richardson, that’s because a dissenting judge on the original three-judge panel exercised a “pocket veto” of what would have been a ruling striking down the state’s ban by not returning his section of the opinion.

“After hearing the case in December 2022, the initial panel majority reached a decision and promptly circulated a draft opinion,” Richardson wrote in a dissent from last week’s ruling. “Yet, for more than a year, no dissent was circulated. The panel thus held the proposed opinion in accordance with our custom that majority and dissenting opinions be published together. One year later, as the proposed opinion sat idle, a different panel heard arguments in United States v. Price, which also involved interpreting and applying Bruen. The Price panel quickly circulated a unanimous opinion that reached a conclusion at odds with the Bianchi majority’s year-old proposed opinion. Facing two competing proposed published opinions, the court declined to let the earlier circulated opinion control. Rather, in January 2024, we invoked the once extraordinary mechanism of an initial en banc review.”

A history of being GVR’d already suggested the Supreme Court at least had its eye on the case. That, coupled with a perception of judicial gamesmanship to scuttle the possibility of pro-gun precedent, could prompt the Justices to take the case to deter something similar from happening in the future.

At the same time, gun-rights advocates do still face some headwinds that could dash their hopes of seeing an assault weapon ban before the Court in the near future.

For starters, there’s no circuit split on the question, and there likely isn’t going to be any time soon.

As the Court of last resort, the Supreme Court generally prefers to hold off on hearing big constitutional questions until there’s an active controversy between the lower appellate courts after they have reached opposite conclusions. There are exceptions, of course, particularly when an appeals court decision blows a hole in existing federal law for a particular segment of the country. In those instances, the Justices will sometimes hear a case without a circuit split, usually at the behest of the DOJ, to whom the Court tends to grant more deference.

What makes the Bianchi decision different from those exceptions is that while assault weapon bans are of national significance, the case deals solely with a particular state law in a circuit in which Maryland is the only state with such a ban. Furthermore, the Fourth Circuit merely preserved the status quo by upholding the ban rather than inducing any new upheaval in Maryland’s legal system that might demand immediate intervention.

Additionally, it’s still not obvious that the other Justices on the Court have the same appetite as Thomas and Alito to take up a hardware ban case in the first place. Sure, Justice Kavanaugh has already demonstrated that he believes such bans are unconstitutional during his time on the D.C. Circuit in his 2011 Heller II opinion. But ruling that way when a case is already in front of you (in a dissenting opinion, no less) and voting to take one up in the first place as a member of the highest court in the land are two separate questions.

The same holds true for Justices Barrett and Roberts, who, while not obviously personally in favor of assault weapon bans, are generally perceived as being more cautious and conscious of institutional perception in the Court’s actions. They have a track record of appearing to weigh the optics of the Court’s decisions in many cases and may not want to ignite the public firestorm that would ensue from the Court raising the question of such a policy’s viability, particularly as the Court is already underwater with public opinion and subject to new partisan attacks every day.

Finally, the Court may also simply have its hands full with what it perceives to be more pressing Second Amendment and other gun-related questions in the near term.

After striking down the Trump-era bump stock ban last term, the justices are already slated to hear another case dealing with the ATF’s rulemaking later this year when they will be asked to review the agency’s “ghost gun” kit ban. Meanwhile, further decisions striking down other ATF rules continue to percolate up through the federal appellate courts and could also wind up before the Court.

Against that backdrop of regulatory gun control challenges, the Supreme Court has also been inundated with requests to address a litany of prohibited persons cases. In the aftermath of its June decision in US v. Rahimi, the question of to what extent felons have gun rights has been a particularly live issue. In the wake of Rahimi, the U.S. Department of Justice asked the Supreme Court to resolve the existing circuit split over whether certain types of felons retain their gun rights, noting in the process that felon-in-possession convictions account for nearly 12 percent of all federal criminal cases. The Court refused and instead sent the five appealed cases back down for new decisions at the appellate level last month. At least one has already been returned with the same outcome.

While it is true that the Court has shown a willingness to take an increased number of gun-related cases in short succession of late, it is also noticeably taking fewer cases overall each term. As more criminal justice system controversies arise, the justices may have little room on their plates for additional Second Amendment work.

It’s not obvious which factors will weigh heavier on the minds of the Justices. It almost never is when it comes to reading the tea leaves on potential Supreme Court cert grants. What is for certain is that gun-rights advocates currently have their best vehicle to date for getting the Court to weigh in on an assault weapon ban. That is by no means guaranteed to be enough, though.