The Supreme Court has decided against providing further guidance on the Second Amendment—at least for now.
The High Court released its final orders list for the term on Tuesday. It featured the Justices’ decision to grant, vacate, and remand (GVR) seven cases dealing with laws prohibiting specific people from having guns back to the lower courts for new decisions. They also vacated and remanded a case dealing with New York’s concealed carry restrictions and denied a request to review a collection of cases on Illinois’ ban on the sale of AR-15s and other popular firearms.
The orders list is the earliest indication of how active the Court plans to be on the Second Amendment moving forward. After a session that featured three gun-related cases—but just one Second Amendment case—the Court’s decision to kick the can on addressing a series of outstanding questions suggests a limited appetite among the Justices for further refinement of its Bruen test at this time.
The Court left little concrete evidence of its thinking in deciding against taking up the pending gun cases. Only the petition denial for the six separate lawsuits challenging the state and municipal “assault weapon” and magazine bans in Illinois featured comments. Justice Samuel Alito noted that he would have voted to review the cases immediately. Meanwhile, Justice Clarence Thomas issued a statement urging the Court to take up the issue once it receives a case that has advanced through the entire appellate process.
“This Court is rightly wary of taking cases in an interlocutory posture,” he wrote. “But, I hope we will consider the important issues presented by these petitions after the cases reach final judgment. We have never squarely addressed what types of weapons are ‘Arms’ protected by the Second Amendment.”
The decision to hold off on reviewing the constitutionality of Illinois’ hardware bans is likely to disappoint gun-rights advocates, who have long sought the High Court’s opinion on bans on popular firearms like the AR-15. However, the Court’s decision to sidestep the question of gun rights for felons and other prohibiting categories is also likely to frustrate the Biden administration.
The Department of Justice (DOJ) had previously asked the Court to address whether the federal gun bans for drug users and felons were constitutional after two separate federal appeals courts struck them down as applied to particular defendants. In United States v. Daniels, the Fifth Circuit held the federal drug user gun ban unconstitutional as applied to a specific non-violent marijuana user. In Garland v. Range, an en banc panel for the Third Circuit struck down the felon-in-possession ban as applied to a man with a 30-year-old conviction for lying to get food stamps.
After the Supreme Court upheld the federal gun ban for people subject to domestic violence restraining orders in last month’s U.S. v. Rahimi decision, the DOJ was unsatisfied with the guidance they offered. It again urged the Court to issue a decision on whether it can legally disarm felons under the Second Amendment.
“Although this Court’s decision in Rahimi corrects some of the methodological errors made by courts that have held Section 922(g)(1) invalid, it is unlikely to fully resolve the existing conflict,” Solicitor General Elizabeth Prelogar wrote.
“The substantial costs of prolonging uncertainty about the statute’s constitutionality outweigh any benefits of further percolation,” she added. “Under these circumstances, the better course would be to grant plenary review now.”
Instead, the Justices sent Range, Daniels, and five other related cases back down to their respective circuit courts “for further consideration in light of United States v. Rahimi.”
