Supreme Court declines to hear gun-control challenges 

After considering them at 15 consecutive conferences, the Supreme Court on Monday declined to take up two challenges to gun-control laws in Maryland and Rhode Island. In each case, three justices indicated that they would have granted the petition for review, leaving the challengers one vote short of the four needed for the court to hear oral arguments and weigh in on the merits of their case. 

In Snope v. Brown, the court declined to decide whether Maryland’s ban on semiautomatic rifles, such as the AR-15 and the AK-47, violates the Second Amendment’s right to bear arms. Nine other states and the District of Columbia have similar bans.

The Maryland legislature enacted the law in 2013, in the wake of the 2012 shooting at Sandy Hook Elementary School in Newtown, Ct., in which a gunman killed 20 first graders and six adults. The full U.S. Court of Appeals for the 4th Circuit rejected a challenge to the law in 2017.

But the full court of appeals agreed to consider the new challenge in 2024, less than two years after the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen. In Bruen, the justices struck down New York’s concealed-carry law, holding that courts should only uphold gun restrictions in the future if there is a tradition of such regulations in U.S. history. 

In an opinion by Judge J. Harvie Wilkinson, who was reportedly on the shortlist to fill the vacancy created by the death of then-Chief Justice William Rehnquist during the George W. Bush administration, the full 4th Circuit rejected the new challenge. 

The majority first concluded that assault weapons are not protected by the Second Amendment’s right to bear arms at all “because, in essence, they are military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense.” 

But even if the Second Amendment does protect the right to have assault rifles, Wilkinson continued, the law is still constitutional because it “fits comfortably within our nation’s tradition of firearms regulation. It is,” he wrote, “but another example of a state regulating excessively dangerous weapons once their incompatibility with a lawful and safe society becomes apparent, while nonetheless preserving avenues for armed self-defense.” 

Judge Julius Richardson dissented from the court’s decision, joined by four other judges – Paul Niemayer, G. Steven Agee, A. Marvin Quattlebaum, and Allison Jones Rushing. Stressing that the “Second Amendment is not a second-class right subject to the whimsical discretion of federal judges,” Richardson argued that the assault weapons barred by the law are “indisputably” covered by the Second Amendment. And although Richardson acknowledged that “history and tradition support the banning of weapons that are both dangerous and unusual,” he concluded that the ban was nonetheless unconstitutional because the Maryland law “prohibits the possession of arms commonly possessed by law-abiding citizens for lawful purposes.” 

The challengers came to the Supreme Court last summer, asking the justices to take up their case. They stress that assault rifles like the AR-15 “are the best-selling rifles in the country. They are owned by millions of Americans and have accounted for approximately 20% of all firearm sales in the country for over a decade.” And if the 4th Circuit’s decision is allowed to stand, they cautioned, then states could place restrictions on virtually any gun in the country except for handguns. 

The state urged the justices to leave the 4th Circuit’s ruling in place. Nearly two decades ago, in District of Columbia v. Heller, they noted, the justices struck down a District of Columbia law that generally banned the possession of handguns. In that decision, the state stressed, the Supreme Court “left no doubt that ‘weapons that are most useful in military service—M-16 rifles and the like—may be banned.’” But in any event, the state continued, there is no reason for the justices to weigh in on this dispute now, when only one other court of appeals has even considered the question. 

Justices Samuel Alito and Neil Gorsuch indicated that they would have granted the challengers’ petition. 

Justice Brett Kavanaugh penned a brief statement regarding the court’s decision to deny review. He suggested that because “millions of Americans own AR-15s and that a significant majority of the States allow possession of those rifles,” the challengers “have a strong argument that AR-15s are in ‘common use’ by law-abiding citizens and therefore are protected by the Second Amendment.” Indeed, he posited, “under this Court’s precedents, the Fourth Circuit’s decision is questionable,” and the court’s decision not to take up the case should not be interpreted as an endorsement of it. Kavanaugh observed that, with the U.S. Court of Appeals for the 1st Circuit having decided this issue and several other courts of appeals currently considering the same question, “this Court should and presumably will address the AR-15 issue soon, in the next Term or two.” 

Justice Clarence Thomas dissented from the denial of review. Because AR-15s are “arms,” he reasoned, the Maryland law can only be upheld if the state can show that its ban is consistent with the country’s historical tradition of gun regulation. And AR-15s do not, Thomas stressed, “fall within the historic exception for dangerous and unusual weapons” because AR-15s are not “unusual” but in fact the most popular civilian rifle in the United States. Thomas “would not wait,” he wrote, “to decide whether the government can ban” it – particularly when, he said, “lower courts in the jurisdictions that ban AR-15s appear bent on distorting this Court’s Second Amendment precedents.” 

In Ocean State Tactical v. Rhode Island, the justices rejected a challenge to Rhode Island’s ban on large-capacity magazines, which state law defines as a device capable of holding more than 10 rounds of ammunition that can be fed into a semi-automatic weapon. Semi-automatic weapons that use detached magazines allow the shooter to take the magazine out once all of the rounds have been fired and swap in a new one. 

The state passed the law in June 2022, shortly before the court’s decision in Bruen and after a mass shooting in Uvelde, Tex., in which an 18-year-old with an AR-15-style rifle killed 19 students and two teachers. 

The law gave Rhode Islanders who already owned large-capacity magazines approximately six months to modify the magazines so that they do not hold more than 10 rounds, turn the magazines over to police, transfer the magazines out-of-state, or sell the magazines to someone who could legally own the devices (such as a licensed gun dealer or an out-of-state buyer). 

Four gun owners and a gun store filed a lawsuit challenging the ban. A federal district court rejected their request to temporarily block the law while the challenge to it continued. 

The gun owners appealed to the U.S. Court of Appeals for the 1st Circuit, which also left the law in place. Even assuming that the Second Amendment’s “right to bear arms” covers the right to have large-capacity magazines, the court of appeals reasoned, the law is still likely to be constitutional. 

First, the court of appeals explained, the Rhode Island ban does not place any “meaningful burden” on the right to bear arms for self-defense. Civilians “rarely—if ever—” have to use “the rapid and uninterrupted discharge of many shots, much less more than ten,” to defend themselves, the 1st Circuit suggested. 

Second, the court of appeals continued, the ban is consistent with a historical tradition of regulating firearms to guard against broader threats to public safety – for example, the risks posed by the presence of large quantities of gunpowder and restrictions on sawed-off shotguns. 

The gun owners came to the Supreme Court in August, asking the justices to take up their case. They emphasized that the ban applies to “magazines that tens of millions of Americans, many Rhode Islanders included, have long lawfully kept and borne for lawful purposes such as self-defense.” 

The court of appeals used the wrong test, they argued. The Supreme Court’s decision in Bruen directs courts to consider how a law burdens the right to bear arms, rather than looking at (as the 1st Circuit did) the magnitude of the law’s burden. But in any event, the gun owners insisted, the “First Circuit’s theory that the scope of the right to keep and bear arms depends on what the government thinks is necessary to exercise it is irreconcilable with the very notion that the Second Amendment protects a fundamental right.” 

Moreover, they told the justices, there “is no historical tradition in our Nation of prohibiting ammunition feeding devices (or firearms) based on their capacity to fire without being reloaded.” Bans on other weapons, like sawed-off shotguns and machineguns, do not justify the Rhode Island law because those weapons “have never been common among law-abiding citizens” and they “pose different risks.” 

Rhode Island’s ban also violates the Fifth Amendment, the gun owners added, which bars the government from taking private property for public use unless it provides “just compensation.” The law not only prohibits residents from owning large-capacity magazines in the future, the gun owners said, but it also “confiscate[s] them from law-abiding citizens who lawfully acquired them long before the ban was enacted.” 

Rhode Island urged the justices to leave the 1st Circuit’s decision in place. The state still allows gun owners to have semi-automatic weapons, it stressed, but owners of those weapons simply have to change magazines more often with the smaller-capacity magazines. This is important, the state wrote, because “reports from mass shootings make clear that any pause in fire, such as the pause to switch magazines, allows for precious seconds in which to escape or take defensive action.” 

The ban does not burden the gun owners’ Second Amendment rights, the state argued, because magazines are only accessories for guns, not “arms.” But the law is nonetheless consistent with a “historical tradition of regulations that promote safety while protecting instruments used for self-defense.” 

The state also pushed back against the gun owners’ contention that the ban constitutes an unconstitutional taking in violation of the Fifth Amendment. Owners of large-capacity magazines, the state said, have “the free choice to transfer, surrender, or modify their magazines to come into compliance.” 

In a brief unsigned order, the court denied the challengers’ petition for review. Thomas, Alito, and Gorsuch indicated (without more) that they would have granted the petition.