Gun-rights advocates’ hopes of emergency relief were unceremoniously dashed by the Supreme Court on Thursday.
The High Court issued an order denying a request for emergency legal intervention in a case against the City of Naperville, Illinois’ ban on so-called assault weapons and “large capacity” ammunition magazines. The request was made by the National Association for Gun Rights (NAGR), which sought an order blocking the ban after a panel of Seventh Circuit judges ruled to uphold it last month.
“The application for a writ of injunction pending certiorari presented to Justice Barrett and by her referred to the Court is denied,” the unsigned order in NAGR v. Naperville reads.
None of the justices wrote separately to comment on the order.
The denial is a disappointment for gun-rights activists. They have eagerly awaited any indication from the Supreme Court signaling their willingness to be more active in hot-button Second Amendment cases, especially those dealing with bans on popular guns. It follows a similar rejection of a previous request by NAGR for the Court to intervene at an earlier stage in the exact same case.
But the Court’s reluctance to step in on an emergency basis may not indicate how it views the merits of assault weapons and magazine bans. It similarly declined multiple requests to intervene in cases against New York’s concealed carry restrictions even though the issues in those cases directly implicate the Court’s recent decision in New York State Rifle & Pistol Association v. Bruen. Justice Samuel Alito and Bruen-author Clarence Thomas, who praised a lower Court’s ruling against New York’s latest carry law, noted the decision not to intervene there came down to procedure.
“I understand the Court’s denial today to reflect respect for the Second Circuit’s procedures in managing its own docket, rather than expressing any view on the merits of the case,” Justice Samuel Alito wrote, joined by Justice Clarence Thomas, in an opinion explaining the Court’s decision not to intervene in Antonyuk v. Nigrelli.
While the Court has declined to intervene in gun cases on an emergency basis when asked by plaintiffs, it has not shown the same aversion when the same requests have been made by the federal government. In August, it issued an emergency order authorizing a stay on a lower court ruling against the ATF’s “ghost gun” ban. The Court ordered the rule be left in effect until it decided whether or not to take up the case itself after it had made its way fully through the lower courts.
“Application (23A82) for stay presented to Justice Alito and by him referred to the Court is granted,” the Court said in a note entered into the docket for Vanderstok v Garland. “The June 30, 2023 order and July 5, 2023 judgment of the United States District Court for the Northern District of Texas, case No. 4:22-cv-691, insofar as they vacate the final rule of the Bureau of Alcohol, Tobacco, Firearms and Explosives, 87 Fed. Reg. 24652 (April 26, 2022), are stayed pending the disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought.”
In October, it doubled down on that order after a lower court judge again tried to block the ATF’s enforcement of the rule.
Hannah Hill, executive director of NAGR’s legal arm, struck an optimistic note that the Court might be waiting to weigh in on the case until the group files an official petition to have it taken up in full.
“The Court has taken serious notice of this case twice, and we look forward to giving them the opportunity to weigh in on the merits,” she said in a statement.
Naperville city officials said they were happy with the decision and vowed to continue defending the ban.
“Throughout this process we expected ongoing legal challenges and appeals,” Linda L. LaCloche, director of communications for the city manager’s office, told The Reload. “The City is prepared to continue to defend its ordinance which is designed to protect the health and safety of our community.”
In the meantime, Naperville’s ban on the sale of AR-15s and similar rifles will remain in effect for residents, along with Illinois’ statewide ban. Those bans were upheld in November by two Seventh Circuit Court of Appeals judges who said that AR-15s and the magazines that come standard with them are not “arms” protected by the Second Amendment because they are “indistinguishable” from fully-automatic machineguns like the M16.
“Based on the record before us, we are not persuaded that the AR-15 is materially different from the M16,” Judge Diane Wood, a Bill Clinton appointee, wrote on behalf of the panel in Bevis v. Naperville. “Heller informs us that the latter weapon is not protected by the Second Amendment, and therefore may be regulated or banned. Because it is indistinguishable from that machinegun, the AR-15 may be treated in the same manner without offending the Second Amendment.”
The Seventh Circuit has since denied NAGR’s request to have that ruling appealed to the full circuit court. The case will now proceed to arguments over the merits of the ban’s constitutionality.
UPDATE 12-14-2023 6:00 PM EASTERN: This piece has been updated to include comment from the City of Naperville.