The U.S. Supreme Court had a chance to finally resolve several issues that have placed Second Amendment proponents at odds with gun control activists for decades, but decided, after more than three months, not to hear the cases.
They were considered by the court at each Friday conference for the last 15 weeks before they finally announced Monday they would probably take them up in the next term — or maybe the one after that.
George Washington Law School Professor Jonathan Turley discussed the cases on X.
"There were two denials of gun rights cases today that some of us have been following closely," he said. "The court refused to hear Snope v. Brown on Maryland's ban on AR-15s, as well as Ocean State Tactical v. Rhode Island, on Rhode Island's ban on large-capacity magazines."
It takes four members of the court to grant certiorari, that is, to agree to hear a case. Turley noted that the court didn't quite make it.
"Notably, they fell one vote short of granting cert. [Justices Clarence] Thomas, [Samuel] Alito, and [Neil] Gorsuch would have granted cert. That left [John] Roberts, [Brett] Kavanaugh, and [Amy Coney] Barrett on the conservative side of the Court."
Of the three justices who would have granted certiorari, Clarence Thomas was the most vocal, and dissented from the court's decision against reviewing the case.
He argued that AR-15s "fall within the historic exception for dangerous and unusual weapons," in that "‘a weapon may not be banned' under this principle ‘unless it is both dangerous and unusual.'" And there's nothing unusual about AR-15s.
As of 2020 there were 19.8 million legally-owned AR-15s in the United States, according to the National Shooting Sports Federation, the premier trade organization for the U.S. arms industry. Today there are well over 20 million.
Newsmax host Carl Higbie quipped on Tuesday's edition of Frontline that there are more AR-15s than there are Ford F-150s in America. All joking aside, it's probably true.
Accordingly, Thomas said in his dissent that he "would not wait to decide whether the government can ban" these popular rifles, especially when "lower courts in the jurisdictions that ban AR-15s appear bent on distorting this Court's Second Amendment precedents."
But what's especially noteworthy is that Justice Brett Kavanaugh admitted in his statement denying review of the cases that the court would likely find AR-15-style rifles legal according to the court's prior rulings.
He observed 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."
Kavanaugh knows that the question isn't going away, and added, "this Court should and presumably will address the AR-15 issue soon, in the next Term or two."
Professor Turley expressed frustration by the court's decision.
"I was particularly disappointed in the failure to review Scopes," he said. "The AR-15 is one of the most popular guns in the United States and this issue has been working through the courts for years," he observed.
"Moreover, various politicians, such as Joe Biden, have been running on this issue for years despite outstanding questions on the constitutionality of such bans," Turley added.
The court always cautions the public not to read anything into their decisions denying review of a particular case. That being said, let's read more into their decision.
Although it takes four votes to agree to hear a case, it takes a majority of the court, five members, to decide a case. Although Kavanaugh voted against review, he practically made the case that AR-15-style rifles legal according to decades of precedent.
Therefore, it wouldn't be wrong to assume that Kavanaugh would likely rule that these weapons are legal as being "in common use" for lawful purposes. But maybe he's voting against review because he doesn't want the court to rule that states may ban them.
Until he and Thomas, Alito, and Gorsuch can convince Chief Justice Roberts and/or Justice Barrett to leave the "Dark Side," he'll continue to vote with them.
As Thomas, and even Kavanaugh, demonstrate, it's not rocket science. AR-15-style rifles and magazines capable of holding more than 10 rounds are in common use for lawful purposes and therefore should be protected under the Second Amendment.
Gun Owners of America Senior Vice President Erich Pratt told Newsmax's Carl Higbie Tuesday that at least one more case is coming down the pike that may be even more appropriate for the court to take up. It involves both an AR-15 and a magazine ban.
Meanwhile, it's disappointing for gun owners but we'll just have to be patient. It'll come.
Michael Dorstewitz is a retired lawyer and is a frequent contributor to Newsmax. He's also a former U.S. Merchant Marine officer and a Second Amendment supporter. Read Michael Dorstewitz's Reports — More Here.
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