The Supreme Court refused to take up what would’ve been its next big gun case on Monday, declining to weigh in on Maryland’s ban on certain so-called assault weapons. But three justices objected and a fourth wrote that the court “should and presumably will address the AR–15 issue soon, in the next Term or two.”
That unusually specific statement came from Justice Brett Kavanaugh. He didn’t go as far as his three Republican-appointed colleagues, who said they wanted to decide the matter now. Those three justices are Clarence Thomas, who wrote an eight-page dissent, and Samuel Alito and Neil Gorsuch, who simply noted their preference to have taken the case. The denial came on the court’s routine order list, which publicizes the latest action in pending appeals.
It takes four justices to grant review. So why didn’t Kavanaugh provide that fourth vote? After all, he deemed “questionable” the federal appeals court ruling that the justices declined to review, primarily concerning Maryland’s ban on the semi-automatic rifle.
But in his statement Monday, the Trump appointee noted that the issue is being reviewed by several other appeals courts, and that those courts’ forthcoming decisions “should assist this Court’s ultimate decisionmaking on the AR–15 issue.” He concluded that more petitions will likely come to the justices “shortly” and that the court “should and presumably will address the AR–15 issue soon, in the next Term or two.”
That’s a formally plausible position, but it might not be the whole story. Again, we have four justices interested in taking up what they see as an important issue. Even if they had granted review in this appeal Monday, that wouldn’t have teed up a decision until next term and likely not coming until a year from now. So, why put it off if all four think that depriving people of these particular weapons is violating their constitutional rights in the meantime? Kavanaugh’s punt all but guarantees continued deprivations (in their view) for at least another year or more (per his timeline).
It could have something to do with simple Supreme Court math and the unknowns of what the other two GOP appointees, Justice Amy Coney Barrett and Chief Justice John Roberts, would do. That is, there’s a difference between getting four justices to agree to review an appeal on the one hand, and forming a majority to rule the way those four justices want to on the other.
To be sure, Barrett and Roberts were in the majority for Thomas’ 6-3 ruling in the Bruen case in 2022 that brought Second Amendment rights outside the home. More recently, all of Thomas’ colleagues split from him in the 2024 Rahimi case, in which the justices voted 8-1 in favor of temporarily disarming people who pose credible threats for domestic violence.
Monday’s rejection of the appeal of the AR-15 ban shows that the Bruen band isn’t quite ready to get back together on this one, or at least that Kavanaugh is worried what Barrett, Roberts or both might do. But given the closeness of the latest vote and the specificity of Kavanaugh’s statement, we’ll be watching his urgent prediction — which is to say, we’ll be watching those other two justices.
For now, the high court’s decision to stay out of it leaves intact the divided appeals court ruling that Kavanaugh deemed questionable. The appellate judges in the majority said the Maryland ban complies with Bruen and that they declined “to wield the Constitution to declare that military-style armaments which have become primary instruments of mass killing and terrorist attacks in the United States are beyond the reach of our nation’s democratic processes.”
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