It’s Time for SCOTUS to Reassert Itself in the Face of Lower Courts’ Anti-Gun Rulings

AR-15 weapon of war
Despite the U.S. Supreme Court’s Bruen decision, lower courts continue their various interpretations of regulations regarding AR-style rifles. Three 2A advocacy groups are asking the high court to step in before the 4th Circuit Court of Appeals can hold an en banc hearing on Maryland’s “assault weapons ban.

Fresh off the “spirit of aloha” decision by the Hawaii State Supreme Court, a coalition of gun rights groups has moved to avoid a tactic anti-gun groups appear to be using…allowing activist judges to carry their proverbial water when it comes to interpreting the Bruen decision on the Second Amendment. 

If you’re not familiar with the “spirit of aloha” it’s the term used by the Supreme Court of Hawaii to overrule the United States Supreme Court’s New York State Rifle & Pistol Association v. Bruen decision. Bruen reversed the various interpretations of the Second Amendment by courts using reduced levels of scrutiny to gun rights cases. The lowered level of scrutiny permitted them to use occasionally convoluted logic to uphold firearms restrictions in their various jurisdictions.

Bruen should have remedied that. And it has led to the vacation of many state restrictions on the carrying of guns. In Bruen, the Court ruled that the two-step tests of “intermediate scrutiny” were, in the words of Justice Clarence Thomas, “one step too many” when it came to the right to keep and bear arms. In other words, laws that are inconsistent with the nation’s historic tradition of firearm regulation infringed on the rights of the individual.

Under the Bruen interpretation, Hawaii’s Second Circuit Court dismissed charges against a resident who was charged with carrying a pistol without the requisite carry permit. 

The case was appealed to the Hawaii Supreme Court. There, the justices concluded “”We reject Wilson’s constitutional challenges. Conventional interpretive modalities and Hawaii’s historical tradition of firearms regulation rule out an individual right to keep and bear arms under the Hawaii Constitution. In Hawaii, there is no constitutional right to carry a firearm in public (emphasis added).”

Well, aloha…this is shaping up to be a battle between the state and federal Supreme Courts.

The state supreme court references a constitution written when the islands were a separate kingdom, not one of the fifty states. I’m told by attorneys reviewing the case that there’s a disconnect between the state supreme court using historical precedent — locally applied — to counter a legal precedent that looks first to its own historical precedent. 

Hawaii’s supremes may find they’re not the only justices who watch television. Their semi-snarky reversal referenced HBO’s The Wire with a quote: “The thing about the old days, they the old days.”

They might do well to remember an old movie quote, this one from Hoosiers: “The sun don’t shine on the same dog’s ass every day, but mister, you ain’t seen a ray of light since you got here.”  

The United States Supreme Court isn’t pleased when lower courts contort themselves to get their desired outcomes. They’re especially unhappy when the lower court essentially thumbs its nose at their decisions. 

Ultimately, this sets the stage for a question that seems to be emerging: what can/will the U.S. Supreme Court do about lower courts that delay — or in the case of the Hawaiian court. ignore — their clear interpretations of the law?

The Supreme Court has the ability to find lower courts in contempt. Following a contempt ruling, the SCOTUS has the power to remove offending parties, including the officers of a lower court. It even has the ability to order imprisonment for “disobedience or resistance to its lawful writ, process, order, rule, decree or command.”

That would require ordering federal marshals to arrest non-compliant judges. That’s in keeping with the U.S. Constitution, which states: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

That “big question” remains unanswered, but the challenge has been issued by Hawaii.

Meanwhile, the Second Amendment Foundation, the Citizens Committee for the Right to Keep and Bear Arms and the Firearms Policy Coalition have petitioned the Supreme Court to take up their challenge to Maryland’s ban on “assault weapons” before the Richmond, Virginia, based 4th Circuit Court of Appeals can (re)hear the case. 

It’s fair to categorize their action as a preemptive move to prevent the 4th Circuit’s apparent reluctance to accept a three-judge judicial panel’s finding on Maryland’s ban.

In their petition, they categorize the 4th’s decision as the “most brazen” example of how appeals courts are “failing to heed the clear teaching of this Court’s precedent” on the right to keep and bear arms.

A three-judge panel of the 4th Circuit had heard the arguments regarding Maryland’s ban in December of 2022, but the court voted to have the full 14-member court hear the case before the panel could issue its ruling. To most observers, that’s a sign that the full court didn’t like the conclusion reached by the three-judge panel. 

As Adam Kraut, executive director of the SAF said in a statement, the en banc hearing decision, “seems to imply the court desired to take this case from a panel with which it disagreed.”

In their petition, the groups made the case that “The Court should step in now to make clear once and for all that the most popular rifles in the history of the nation are protected by the Second Amendment.”

There’s also the valid question of political ideology. Two of the three judges on the panel were Republican appointees. The full court has eight Democrat appointees versus six Republican administration selections. 

As always, we’ll keep you posted.

9 Responses

  1. I can’t help but think that the deliberately belligerent and antagonistic tone of the ruling was designed to goad the Court into making an inflamed ruling they will use when the court balance inevitably swings back in their favor.

    Take the ‘Dred Scott’ ruling as an example. A bad initial ruling, and rightfully overturned down the road. We can’t let that happen to ‘Heller’ thru ‘Bruen’ and let them claim the moral high ground…

    1. Having read the Dred Scott ruling, why would you consider it “bad”. At its principal, the question was whether property has rights, not the morality of whether humans should be property. [Or even other animals – see the NY case attesting that Happy the Elephant should have rights should have the same rights as humans].

      The Dred Scott ruling was even used in Bruen by Justice Thomas. The Chief Justice in the Dred Scott ruling had a paragraph which basically stated that if Mr. Scott was not property, then he would be afforded all rights secured in the Bill of Rights, including the right to keep and bear arms. This is a powerful statement showing that 2A has always been seen as an individual right.

      1. “Having read the Dred Scott ruling, why would you consider it “bad”.”

        I apologize if I wasn’t clear, I meant the ruling *correcting* the bad 1857 ruling authored by Taney, where blacks weren’t considered citizens…

  2. SCOTUS is toothless. It’s proven that it’s unwilling to assert itself over the lower courts and their judicial insurrection against SCOTUS rulings.

    It’s becoming apparent that Roberts, ACB, Gorsuch, and Kavanaugh aren’t interested in defending our 2A rights.

    1. “SCOTUS is toothless. It’s proven that it’s unwilling to assert itself over the lower courts and their judicial insurrection against SCOTUS rulings.”

      How do you explain the recent ‘Bruen’ SCotUS decision, you know, the one that said “a two-step approach on constitutionality was one step too many” was ‘toothless’?

      Whatever you’re smoking, can I have some from your bag? 🙂

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