Cert Alert: SCOTUS Grants Certiorari in AR-15 Ban Cases

Cert Grants

This morning, the Court granted certiorari in two cases challenging AR-15 bans, Viramontes v. Cook County, Illinois and Grant v. Higgins. In Viramontes, petitioners challenge the constitutionality of Cook County’s prohibition on the possession of AR-15s and similar semiautomatic rifles. In Grant, petitioners challenge Connecticut’s assault weapons ban as impermissibly restricting firearms “in common use for lawful purposes.”

Last term, Justice Kavanaugh issued a statement respecting the denial of cert in Snope v. Brown, which involved a challenge to Maryland’s assault weapons ban. In that statement, Justice Kavanaugh opined 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.” This is because, he explained, “Americans today possess an estimated 20 to 30 million AR–15s. And AR–15s are legal in 41 of the 50 States, meaning that the States such as Maryland that prohibit AR–15s are something of an outlier.” Furthermore, he wrote,

Under this Court’s Second Amendment precedents, moreover, it can be analytically difficult to distinguish the AR–15s at issue here from the handguns at issue in Heller. AR–15s are semi-automatic, but so too are most handguns. (Semi-automatic handguns and rifles are distinct from automatic firearms such as the M–16 automatic rifle used by the military.) Law-abiding citizens use both AR–15s and handguns for a variety of lawful purposes, including self- defense in the home.

Separately, Justice Thomas issued a dissent from denial of cert in Snope on the basis that the Fourth Circuit erred in concluding that AR-15s are not “arms” within the meaning of the Second Amendment.

Justices Gorsuch and Alito would have granted cert in Snope. With Justices Thomas and Kavanaugh, that is four votes to strike down AR-15 bans. That leaves us with Chief Justice Roberts and Justice Barrett as potential allies in a majority overturning the bans. Given that both Roberts and Barrett joined the majority opinion in Wolford last week striking down Hawaii’s property default law, it seems likely that either of them could join the Alito, Gorsuch, Thomas, Kavanaugh bloc. All things considered, there is a significant chance that the AR-15 bans will be struck down.  

Cert Denials: Age Restrictions

The Court also issued some cert denials this morning, most notably denying cert in several challenges to age restriction statutes. Florida and federal law (among others) restrict purchase and possession of firearms to anyone 21 years of age and older. Today, the Court denied cert in NRA v. Glass (challenging Florida law), Bivens (formerly Paris) v. Second Amendment Foundation (challenging federal law), McCoy v. ATF (challenging federal law), Picon v. United States (challenging D.C. law), and West Virginia Citizens Defense League v. ATF (challenging federal law). These denials leave in place Third Circuit precedent striking down the age restrictions (Bivens), as well as DC Court of Appeals, Fourth Circuit, and Eleventh Circuit precedent upholding the restrictions.

Justice Thomas would have granted cert in West Virginia v. ATF. Considering the Justices have given little guidance on the “who” question—that is, who are “the people” within the meaning of the Second Amendment, this question, or similar "who" questions, may arise again in the future and warrant the Court's attention.