SCOTUS Gun Watch: 1/9

Cases We’re Watching At Conference 

This Term is already likely to be a blockbuster for the Second Amendment. It is the first time the Supreme Court has ever granted cert in more than one Second Amendment merits case in a Term.  Those cases are Wolford and Hemani, and you can find our prior coverage on those cases here and here.  Oral arguments have been scheduled for January 20 in Wolford and March 2 in Hemani; subscribe to Second Thoughts for our up-to-date coverage. 

But Wolford and Hemani might not be the only Second Amendment cases the Court hears this Term. At the next conference on January 9 alone, the Court will review cert petitions from six Second Amendment cases. Several raise related issues and could theoretically be consolidated for argument and resolution. 

Here are the cases we’re watching at conference this week.  Given the range and potential significance of the issues before the Court in what is already a momentous Term, we break down the cases in extra detail here. 

Friday, January 9 

Vincent challenges federal criminal statute 18 U.S.C. § 922(g)(1), which prohibits the purchase, transfer, shipment, or possession of firearms by anyone “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year”—which is to say, anyone with a felony conviction.  Petitioner, previously convicted of bank fraud, argues that because her conviction is not for a violent felony, the rationale of Rahimi, which allowed the disarmament of “dangerous persons,” does not apply.  

The Tenth Circuit ruled against Petitioner, upholding the constitutionality of Section 922(g)(1), relying principally on the Court’s statements from Heller and Rahimi that felon possession bans are “presumptively lawful.”   The Tenth Circuit declined to wade into the violent versus non-violent morass, noting that nothing in Rahimi nor Heller required it to do so. 

Mr. Zherka, similar to Ms. Vincent, was convicted of financial crime (conspiracy to make a false statement to a bank and to file a false federal income tax return).  He was sentenced to three years in prison.  He finished serving that sentence in 2020 and is now precluded from possessing a firearm by § 922(g)(1), which is the basis for his challenge.  Zherka likewise argues that because his conviction is not for a violent offense (nor has the government demonstrated him to be dangerous), Rahimi is not controlling.  Below, Plaintiff-Petitioner also raised a due process claim, asserting that because he has a constitutional right to bear arms, he also has a due process right to an individual assessment of dangerousness before the government can deprive him of his Second Amendment rights.  He does not raise that issue in his cert petition.  

The Second Circuit held that the conduct at issue (desire to possess a firearm in the home for self-defense) falls within the plain text of the Second Amendment, and Zherka is a member of “the people” to whom those protections are afforded despite his status as a convicted felon.  Nevertheless, the Second Circuit upheld the constitutionality of § 922(g)(1) because the government sufficiently demonstrated that disarming felons, even nonviolent ones, is consistent with historical gun regulations.  

The violent vs. non-violent felon distinction is one the Court may be likely to take up at some point in the near future.  First, the Circuits are split on the issue.  In addition to the Tenth Circuit in Vincent and the Second Circuit in Zherka, the Fourth, Eighth, and Eleventh Circuits have taken similar positions.  United States v. Hunt, 123 F.4th 697 (4th Cir. 2024); United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024); United States v. Hester, No. 23-11938, 2024 WL 4100901, at *1 (11th Cir. Sept. 6, 2024) (per curiam)).  On the other hand, the Third, Fifth, and Sixth Circuits have held that Section 922(g)(1)’s prohibitions cannot withstand constitutional scrutiny as applied to non-violent felons.  Range v. Attorney General, 124 F.4th 218, 232 (3d Cir. 2024) (en banc); United States v. Diaz, 116 F.4th 458 (5th Cir. 2024); and United States v. Williams, 113 F.4th 637 (6th Cir. 2024).   

But, as the government points out, the latter group of cases stands in tension with Heller’s statement that “nothing” in Heller “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons,” District of Columbia v. Heller, 554 U.S. 570, 626 (2008), which Justices Roberts and Kavanaugh affirmed in concurrence in Bruen, 597 U.S. 1, 80-81 (2022).  Given how frequently the states and federal government invoke that line to defend felon dispossession laws, members of the Court may be eager to either clarify or reaffirm this oft-cited line. 

Finally, some justices have expressed particular views on the violent vs. non-violent felon issue in the past.  For instance, then-Judge Amy Coney Barrett penned a lengthy dissent in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) on this very issue.  She wrote: 

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791—and for well more than a century afterward—legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety. 

Id. at 451 (Barrett, J., dissenting).  For the Center’s prior discussion of Justice Barrett’s Second Amendment philosophy, see here. 

On the other hand, Justice Alito (joined by Justice Thomas) wrote in 2019 that Section 922(g), which includes the felon possession ban, “probably does more to combat gun violence than any other federal law.”  Rehaif v. United States, 588 U.S. 225, 239 (2019) (Alito, J., dissenting).  

Taken together, there’s a decent chance that the Court grants cert in a case raising the violent versus non-violent felon distinction in the near future.  We’ll be keeping a close eye on it. 

Petitioners have challenged a Washington statute that prohibits the sale, attempted sale, manufacture and distribution of large-capacity magazines (“LCMs”) that hold more than 10 rounds.  Washington Revised Code § 9.41.370, as amended by ESSB 5078, 2022 Wash. Sess. Laws ch. 104, § 3(1).  Notably, the statute does not ban the possession of LCMs.   

The posture of the case is interesting. After the law took effect in 2022, Petitioners did not bring a constitutional challenge. Rather, the State alleges, they continued to sell thousands of LCMs in direct violation of the law.  Only after the State brought an enforcement action against Petitioners in September 2023 did they raise a constitutional challenge to the law.   

The superior court found in Plaintiffs-Petitioners’ favor; the Washington Supreme Court reversed, holding that high-capacity magazines, as defined by the statute, are not “Arms” protected by the plain text of the Second Amendment.   

In favor of granting cert, Petitioners rely on a growing split among courts on the threshold question of whether LCMs constitute “Arms” under Bruen’s first step.  The Washington Supreme Court, in holding against Petitioners, joined the Seventh and Ninth Circuits in ruling that LCMs are not “Arms” within the plain text of the Second Amendment.  Bevis v. City of Naperville, 85 F.4th 1175 (7th Cir. 2023), cert. denied sub nom. Harrel v. Raoul, 144 S.Ct. 2491 (2024); Duncan v. Bonta, 133 F.4th 852 (9th Cir. 2025) (en banc).  In contrast, the D.C. Circuit and Third Circuit have held that LCMs are “Arms” under the Second Amendment's plain text.  Hanson v. District of Columbia, 120 F.4th 223 (D.C. Cir. 2024); Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Att’y Gen. N.J., 910 F.3d 106 (3d Cir. 2018).   

Petitioners argue principally that LCMs are “instruments that constitute bearable arms” because they are something that one “takes into his hands, or useth in wrath to cast at or strike another.”  Petitioner’s Opening Brief at 21-22, quoting Heller, 554 U.S. at 582.  Second, Petitioners argue that at the nation’s founding, there were no laws restricting ammunition capacity, and therefore the law lacks a historically relevant analogue.  They further rely on Bruen’s pronouncement that “the Second Amendment protects the possession and use of weapons that are ‘in common use at the time,’” N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 21 (2022) (quoting Heller, 554 U.S. at 627), and argue at length how common and popular LCMs are among gun owners today.   

Washington argues that LCMs are accessories, not arms themselves, and that in any event they are not in common use for self-defense.  The State relies on Heller’s pronouncement that military-grade arms are not protected by the Second Amendment, noting that LCMs were originally designed for military use in the First World War and continued use among the armed forces.  The State further cautions that the case is not an appropriate vehicle for resolution of the issue, and that a true circuit split does not exist. 

Last Term, the Court declined to review Rhode Island’s ban on LCMs in Ocean State Tactical, LLC v. Rhode Island (after relisting the petition for conference a whopping 16 times).  Justices Thomas, Alito, and Gorsuch stated in the denial that they would have granted the petition for certiorari.  Given the Court’s denial of cert on the issue last Term, it’s unlikely to grant this Term, but the three Justices’ interest in the issue may suggest future willingness to engage. 

In 2000, California banned the manufacture, importation, sale, and transfer of LCMs (defined as containing more than 10 rounds).  The 2000 law did not ban possession of LCMs.  In 2016, California amended the law to also prohibit possession.  Later the same year, California voters approved Proposition 63, which required those in possession of LCMs to surrender them to law enforcement for destruction, destroy them, remove them from the state, or sell it to a federally licensed firearms dealer.  Cal. Penal Code §§ 16740(a), 32310(d)(1)-(3).  Petitioners brought this suit in 2016 shortly before the ban was to take effect.  After a Ninth Circuit panel overturned the law on Second Amendment grounds (declining to reach the Takings issue), the full Circuit sitting en banc reversed, upholding the ban.  Petitioners filed a cert petition, which the Court granted, vacating the en banc decision, and remanded for further consideration in light of its decision in Bruen.  The district court found the law to be unconstitutional after applying Bruen.  Again, the Ninth Circuit sitting en banc disagreed, upholding the law under the Second Amendment.  The court also rejected Petitioners’ facial Takings Clause challenge, adopting its prior ruling from 2021 and noting that nothing about Bruen affected its Takings analysis.  Petitioners now seek review of both questions.   

Because of the overlapping issues, the arguments related to the LCM prohibition in Duncan are very similar to those raised in Gator’s.  But there is a potentially critical factual distinction between the two cases, which is that Washington permits possession of LCMs, just not their sale or manufacture, whereas California has banned their possession outright. It’s also worth noting that Petitioners in both Gator’s and Duncan are represented by Clement & Murphy, powerhouse litigators who frequently appear in the Second Amendment space.   

So, let’s turn to the Takings Clause issue.  Petitioners assert that because California’s ban on LCMs requires their ultimate sale or disposal, this dispossession constitutes an uncompensated taking under the Fifth Amendment.  The Ninth Circuit adopted by reference its prior decision from 2021, which denied Petitioners’ Takings Claims under both physical and regulatory takings theories.  In relevant part, the Ninth Circuit explained, 

Nothing in the case law suggests that any time a state adds to its list of contraband—for example, by adding a drug to its schedule of controlled substances—it must pay all owners for the newly proscribed item. To the contrary, the Supreme Court has made clear that “the property owner necessarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers.” Lucas, 505 U.S. at 1027. Here, an owner of a large-capacity magazine may continue to use the magazine, either by modifying it to accept a smaller number of bullets or by moving it out of state, or the owner may sell it. 

Petitioners argue that “being forced to '[s]urrender” lawfully acquired property is a taking,” and none of the options provided in the statute solve the issue: “A law mandating that private party A sell his property to private party B effects a physical taking.”  And it’s no better under a regulatory takings theory, according to Petitioner, because 

[T]he principal problem with the state’s confiscatory ban is not that it deprives market actors of the expected economic use of their property (although it does). It is that it deprives them of possession of their property. A complete deprivation of one’s ability to possess one’s property as it was when one acquired it is no mere ‘use' restriction that can be dismissed as a regulatory taking; it is the whole enchilada.

Cook County, Illinois (home to the city of Chicago) prohibits the sale, transfer, or possession of any “assault weapon,” defined to include semiautomatic rifles like the AR-15. Code of Ordinances of Cook County, Ill., § 54-211.  The ban has been in place since 1993 and amended twice since.  Petitioners Cutberto Viramontes, Christopher Khaya, the Firearms Policy Coalition and the Second Amendment Foundation challenged the assault weapons ban as violating the Second Amendment.  On review below, the District Court and the Court of Appeals for the Seventh Circuit held against Petitioners, relying on Bevis v. City of Naperville, 85 F.4th 1175, 1185 (7th Cir. 2023), which squarely addressed the constitutionality of Cook County’s assault weapon ban and upheld the law.  The Seventh Circuit’s analysis focused on the following: “Supreme Court decisions and historical sources indicate that the Arms the Second Amendment is talking about are weapons in common use for self-defense.”  This is because, per Heller, “[t]he traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense.” Accordingly, “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”   

As Petitioners here were unable to offer a meaningful distinction between the challenges in Viramontes and Bevis, the Seventh Circuit affirmed the District Court’s dismissal and declined to review its precedential opinion from Bevis.  The Supreme Court denied certiorari in Bevis last Term.  Justice Alito would have granted cert.  Justice Thomas wrote a statement on the denial, imploring his colleagues that, “this Court must provide more guidance on which weapons the Second Amendment covers,” and describes the Seventh Circuit’s militaristic vs. non-militaristic weapons distinction as “unmoored from both text and history.” 

In their cert petition, Petitioners appear to argue principally that the class of arms is protected by the Second Amendment because of its widespread popularity.  The brief spends pages examining market surveys and production data, apparently in support of this popularity, or common use, argument.  Petitioners also claim that “Arms capable of firing multiple shots were well known to the Founding generation,” and that AR-15s should not be characterized as military-grade weapons.   

The County highlights, in addition to its merits Second Amendment arguments, the procedural and factual anomalies of the lower court proceedings to demonstrate why this case a poor vehicle for Supreme Court review.  For example, the Seventh Circuit wrote in its opinion (and noted at length during oral arguments) that Petitioners neglected to develop a factual record, only moving to supplement the record after discovery had closed, and that this dearth of information meaningfully affected the Circuit’s review. 

Given these anomalies, the Court might agree with Cook County that Viramontes does not offer the best vehicle for Supreme Court review.  But it’s worth noting that at least three Justices are inclined to review the merits of AR-15 bans soon, even if it’s not in this case.  Last Term, the Court also declined to review Snope v. Brown, which challenged the constitutionality of Maryland’s ban on AR-15s.  Justices Gorsuch and Alito would have granted cert.  Justice Kavanaugh issued a statement respecting denial, writing that there is a “strong argument that AR-15s are in ‘common use’ by law-abiding citizens and therefore are protected by the Second Amendment” and that it is “analytically difficult to distinguish the AR-15[] … from the hand-guns at issue in Heller.”  He further stated that “this Court should and presumably will address the AR-15 issue soon, in the next Term or two.”  

We are also watching National Association for Gun Rights v. Lamont, which raises similar questions to Viramontes, Duncan and Gator’s (challenging both an AR-15 ban and LCM restrictions). Petitioners’ reply brief in Lamont was filed January 5, and the case has been scheduled for discussion at conference on January 23.   

Petitioners challenge Illinois’s statutory prohibition on carrying firearms on public transit.  Specifically, Illinois prohibits “carrying a firearm for self-defense onto “[a]ny bus, train, or form of transportation paid for in whole or in part with public funds, and any building, real property, and parking area under the control of a public transportation facility paid for in whole or in part with public funds.” 430 ILCS 66/65(a)(8); see also 430 ILCS 66/70(e); 730 ILCS 5/5-4.5-60 (defining punishments for violations). 

The district court agreed with Plaintiffs-Petitioners that the statute violates the Second Amendment, holding that the State had failed to justify the Ban by reference to any comparable historical restrictions.  The Seventh Circuit reversed.  It agreed with the district court that the public transit possession ban implicated the Second Amendment’s plain text but held that Respondents offered sufficient evidence of historical laws restricting “firearms in analogously crowded and confined locations.” 

In their petition for cert, Petitioners dispute the State's characterization of public transit as “sensitive places.”  Petitioners argue that “While it may be a laudable goal to seek to ensure that law-abiding citizens can ride public transportation in peace, banning them from possessing firearms only makes them more vulnerable.”  

Respondents have yet to file a response brief; it is due by January 17, though Respondents have requested a 30-day extension.  Given the delay, the case may well be relisted for a later conference date after briefing has concluded.