Here in the Real World, While the Supreme Court Percolates, Americans Face Actual Felony Charges

With Monday’s announcement that the Supreme Court had passed on hearing cases involving Maryland and Rhode Island restrictions on firearms (Maryland’s “assault weapons” ban and Rhode Island’s magazine capacity restrictions), response from the Second Amendment organizations was, to put it mildly, heated.

While the 2A groups decried the decision, it’s also worth noting that the three justices who wanted to hear the cases (Alito, Gorsuch and Thomas) weren’t happy about the cert denial either. 

They realize that both of the cases in question — and several others working their way through the courts — will eventually demand a decision by  the high court. Monday’s denial of cert isn’t rendering any clarity on the underlying legal issues and that, essentially, is the Supreme Court’s only job.

The decision absolutely qualifies as controversial. In fact, Justice Brett Kavanaugh, who supported the cert denial, admitted that with the many challenges to AR-style firearm bans in lower courts “this Court should and presumably will address the AR-15 issue soon.”

The NSSF said they “must respectfully disagree with Justice Brett Kavanaugh’s statement respecting the denial of cert in the Snope case that the Court should wait a “Term or two” before taking action to stop the lower courts from misapplying the Court’s holding Heller and Bruen to deny the Second Amendment rights of millions of law-abiding Americans living in the states that have enacted laws banning MSRs and magazines.”

Before Monday’s announcement, many in the 2A community were more than slightly confident that Snope v. Brown, the case contesting Maryland’s AR-ban, represented more than a sufficient infringement on Second Amendment rights to merit not only a hearing, but a decision overturning the law that was passed shortly after Sandy Hook. Ditto for Ocean State Tactical v. Rhode Island on the matter of magazine capacity restrictions.

While the high court’s avoidance of both cases leaves one wondering what the remaining justices are thinking, there’s no doubt about what 2A groups think.

The Second Amendment Foundation called the decision “an egregious error that sidesteps addressing an important issue which requires the court’s intervention.”

The Firearms Policy Coalition was even more direct, writing “We are disappointed that some members of the Supreme Court did not have the judicial courage to do their most important job and enforce the Constitution.”

Inside the court, Justice Clarence Thomas was nearly as direct in his dissent: “I would not wait to decide whether the government can ban the most popular rifle in America,” he wrote. “That question is of critical importance to tens of millions of law-abiding AR-15 owners throughout the country.”  Thomas’ reasoning is in direct opposition to the “reasoning” Justice Kavanaugh used in not voting to hear the cases.

Kavanaugh wants lower courts to consider “other issues,” saying they could help the Supreme Court’s “ultimate decision-making on the AR-15 issue.”  That sounds more like a politician sticking a finger up in the wind than a supreme court justice. And it’s not a good look, especially when Kavanaugh’s “term or two” dithering contradicts judges from those lower courts. 

They have indicated — repeatedly — that they need guidance, not avoidance on correctly interpreting the high court’s decidedly fuzzy 2A rulings. 

Chief Judge Albert Diaz of the Fourth Circuit described the high court’s rulings on interpretation of the Second Amendment “a labyrinth for lower courts…with only a one dimensional history-and-tradition test as a compass.” Lower courts, Diaz writes, need more help rather than “shifting through the sands of time.”

The Roberts Court, at least in part, seems quite content to force lower courts to continue searching for those grains of truth, especially if it helps the Supremes avoid deciding another Second Amendment-related case.

Meanwhile, as the Court dithers, Rhode Island residents with magazines holding more than ten rounds and Maryland residents owning one of the myriad “assault rifles” that have been banned face real felony charges. Charges that aren’t applicable to citizens in most of the rest of the United States. 

Laws, when undecided, represent justice denied. Further, the reluctance to hear any 2A case gives credence to an argument that the Roberts Court is more concerned with optics than interpreting the law. 

This time, there’s no arguing that they’re simply kicking the can down the road.

We’ll keep you posted.