SCOTUS Cert Denial in AR-15 Case Underscores Perversity of Second Amendment Doctrine

Last week, the Supreme Court denied a petition for certiorari in Snope v. Brown despite the fact that four Justices appeared to want to grant review. That's curious because it takes only four votes to grant a cert petition. In today's essay, I speculate about the voting dynamic before briefly turning to the merits of the case, which raises the question whether the Second Amendment invalidates state restrictions on possession of assault rifles. As I'll explain, the Justices who apparently wanted to answer that question in the affirmative--and thus recognize a right to "keep and bear" assault rifles--have a pretty good argument under existing precedent. That conclusion illustrates what's wrong with the existing precedent.

A Maryland law  bans the sale or possession of assault weapons, including AR-15s, AK-47s, and similar semi-automatic rifles. (Federal law not challenged in the case bans fully automatic rifles, i.e., machine guns.) Some Maryland residents, gun rights organizations, and a firearms dealer challenged the law on Second Amendment grounds. The Fourth Circuit upheld it, but then the Supreme Court vacated and remanded the case for reconsideration in light of NYS Rifle & Pistol Ass'n v. Bruen, which announced an historical test for the validity of firearms regulation. After reconsideration, the Fourth Circuit, sitting en banc, again upheld the Maryland law. Judge J. Harvie Wilkinson III wrote for the court:

The assault weapons at issue fall outside the ambit of protection offered by the Second Amendment 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. Moreover, the Maryland law fits comfortably within our nation’s tradition of firearms regulation. It is 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.

The plaintiffs petitioned for a writ of certiorari, which SCOTUS denied. The order denying cert says that Justices Alito and Gorsuch would grant the petition. In addition, Justice Thomas published a dissent from the cert denial. That's three Justices. And then there's a statement from Justice Kavanaugh strongly suggesting that, if the Court were to grant review, he would vote to reverse the Fourth Circuit.

The Fourth Circuit rejected the plaintiffs' challenge for two independently sufficient reasons. First, it thought that assault weapons fall outside the scope of Second Amendment protection. Second, even if assault weapons have prima facie protection, the Fourth Circuit concluded that Maryland's law satisfies the Bruen test. It is consistent with the historical tradition of firearms regulation--in particular, the tradition of banning extremely dangerous weapons.

Justice Kavanaugh thinks the first basis for the Fourth Circuit's decision is mistaken because it applies the wrong threshold test. Under Bruen and, for that matter, the first case in the modern line of Second Amendment doctrine, District of Columbia v. Heller, weapons count as "arms" for purposes of the Second Amendment if they are in "common use," i.e., if they are "typically possessed by law-abiding citizens for lawful purposes." Justice Kavanaugh notes that "millions of Americans own AR–15s" and that while some of those people use them to commit crimes, the same is true of handguns, which are used to commit more crimes but are clearly protected arms under the Second Amendment.

Justice Kavanaugh does not expressly address the Fourth Circuit's application of Bruen on the assumption that assault rifles do count as Second Amendment "arms" but he implies that he disagrees with that aspect of the court's analysis as well. He describes the Fourth Circuit decision (not just its threshold analysis) as "questionable." Moreover, he suggests that assault weapons are not especially dangerous and thus (one is left to infer that he thinks) they do not fall within a historical tradition of regulating unusual and especially dangerous weapons. He writes that

criminals use both AR–15s and handguns, as well as a variety of other lawful weapons and products, in unlawful ways that threaten public safety. But handguns can be more easily carried and concealed than rifles, and handguns—not rifles—are used in the vast majority of murders and other violent crimes that individuals commit with guns in America.

Meanwhile, even apart from his statement in Snope, we have very good reason to think that Justice Kavanaugh believes that assault weapons bans violate the Second Amendment. As a judge on the D.C. Circuit, he dissented from a panel decision upholding the District's ban, and he cites his own dissent in his Snope statement. And he reminds readers that "a denial of certiorari does not mean that the Court agrees with a lower-court decision or that the issue is not worthy of review."

So why didn't Justice Kavanaugh join the three dissenters to vote to grant certiorari? He doesn't say exactly, but he does note that the issue is pending in multiple courts throughout the country, perhaps suggesting that he thinks the Court would benefit from what is sometimes called further percolation.

Another possibility is that Justice Kavanaugh voted to deny cert defensively. Casting the fourth vote to grant cert would have placed the case on the docket but would not ensure reversal on the merits. Perhaps Justice Kavanaugh calculated that his would be the fourth vote to invalidate an assault weapons ban but that there would be no fifth vote. I'm not sure why he might think that neither of Chief Justice Roberts nor Justice Barrett would go along with a decision to strike down an assault weapons ban. They both voted to uphold the federal law barring firearms possessions from people subject to domestic violence restraining orders in United States v. Rahimi, but so did every other member of the Court other than Justice Thomas. And if Justice Kavanaugh has reason to think that five Justices would sustain an assault weapons ban, it's not clear why he goes out of his way--at the end of his statement--to say that the Court should address the issue soon.

In the end, it is not entirely clear why Justice Kavanaugh did not cast a fourth vote to grant cert in Snope. Putting that question aside, if and when an assault-weapons-ban case does find its way to the Supreme Court's plenary docket, there is reason to worry that not just four Justices, but a majority of the Court, will find a constitutional right to possess such weapons. Justice Kavanaugh and Justice Thomas--who makes similar arguments in his dissent from the cert denial in Snope--are right that Heller and Rahimi establish a threshold inquiry that looks at whether a weapon is in common use, not, as the Fourth Circuit said, whether it is suitable for self-defense.

But if they're right on the doctrine, that just shows what's wrong with the doctrine. As Justice Breyer explained in his Heller dissent:

On the majority's reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.

Meanwhile, Justice Thomas writes in his Snope dissent that, under the Court's Second Amendment precedents, “[a] weapon may not be banned unless it is both dangerous and unusual” (emphasis in original). Consequently, he argues, the Fourth Circuit's conclusion that assault rifles are especially dangerous is not enough to fit them into the relevant historical tradition. That also appears to be a correct characterization of the doctrine, which contains the same perversity at this step as it does at the threshold. Widespread proliferation of a very dangerous form of weapon means it both qualifies for Second Amendment protection at the threshold and that it cannot be regulated on that ground because, while it is dangerous, it is not unusual.

Mere description of the Court's Second Amendment doctrine should be enough to signal that it should be substantially modified. As I noted on the blog when Rahimi was handed down last year, the Court's approach in that case suggests the possibility that there is some appetite for backing off of the most extremely gun-protective version of the doctrine. Perhaps Justice Kavanaugh's reluctance to cast a fourth vote to grant cert in Snope implies that this possibility is real. If so, that would be a welcome development, though not enough to fix what's wrong with Second Amendment doctrine. It needs to be scrapped, not merely softened. That said, softening would be better than what at least four Justices appear to want--a constitutional right to carry assault weapons.

-- Michael C. Dorf