What is Going on at SCOTUS? Attempted Ban on Semi-Automatics and Birthright Decision
Beyond the Headlines: The Supreme Court’s Final Decisions” (two), Civil Discourse, Joyce Vance
First one is ongoing and the second was decided. About a five-minute read with clear explanations and more detail on the site.
– Bans on Semi-Automatic rifles? Are bans legal? In particular the AR-15 is being discussed. Some explanation and still a work in progress..
The Supreme Court never really sleeps. Even though today was the last day they will announce decisions from cases that were briefed and argued during the 2025-2026 term, there are still matters pending on the shadow docket and a whole host of cases they must consider to decide whether they will hear them next term. As if to underscore that, when the “cleanup conference” order came out this afternoon, we learned the Justices had agreed to hear a case that asks them to determine whether bans on AR-15s and other semi-automatic rifles are constitutional. That’s the issue in Viramontes v. Cook County, which has been consolidated with a second case, Grant v. Higgins.
It only takes four votes to grant certiorari and hear these cases. It will take a fifth one to end restrictions on casual civilian ownership of these weapons. That’s what’s at stake. The Court doesn’t take cases like this just to pat a state on the head and sign off on its ban—it has bigger fish to fry than affirming the status quo.
Last June, the Court declined to take a case called Snopes v. Brown, a challenge to the constitutionality of a Maryland law that banned semiautomatic rifles, including the AR-15.But there were almost four votes to take that case.Justices Alito and Gorsuch would have granted cert. Justice Thomas wrote an eight-page dissent from the denial, in which he explained, “This petition presents the question whether this ban is consistent with the Second Amendment. The Fourth Circuit held that it is, reasoning that AR–15s are not “arms” protected by the Second Amendment … I would grant certiorari to review this surprising conclusion.” That’s not the kind of language you use if you intend to affirm the ban. He concluded, “law-abiding AR–15 owners must rely on the goodwill of a federal agency to retain their means of self-defense. That is ‘no constitutional guarantee at all.’”
It was Justice Kavanaugh who contributed almost a fourth vote for cert. He issued an 11-page “statement respecting the denial.” He wrote: “Given that millions of Americans own AR–15s and that a significant majority of the States allow possession of those rifles, petitioners have a strong argument that AR–15s are in ‘common use’ by law-abiding citizens and therefore are protected by the Second Amendment.” He called the Fourth Circuit decision the Court was being asked to review “questionable.” But he explained his vote against cert in practical terms, noting 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.” Instead, he pointed to similar cases percolating in a number of circuits and expressed an interest in waiting for a number of them, including Viramontes, to arrive at the Court, writing “in my view, this Court should and presumably will address the AR–15 issue soon, in the next Term or two.”
Now, that’s the case. We don’t know if the four Justices picked up a fifth vote along the way that convinced Justice Kavanaugh this was “the right time,” as in a time when they now have enough votes to change the rules.
Earlier today the Court issued its decisions in the four remaining cases. There were few surprises.
– Birthright Citizenship, Trump v. Barbara: Read the opinion here. Justices Roberts, Sotomayor, Kagan, Barrett, and Jackson were in the majority. Justice Kavanaugh was sort of in the majority; see below. Justices Thomas, Alito, and Gorsuch dissented.
The Court narrowly managed to find five votes for the proposition that the 14th Amendment, which clearly does this, guarantees birthright citizenship. Although Justice Kavanaugh joined the majority in holding that Trump’s executive order on the matter violated the law, he didn’t base his decision on the 14th Amendment, even though it plainly says “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,” like the other five Justices in the majority did.
The Chief Justice held that children born in the U.S., even if their parents are unlawfully or temporarily here, are “citizens at birth” under the Constitution. “The Framers of the Fourteenth Amendment,” he wrote, “extended that promise to ‘every free-born person in this land.’ We keep that promise today.”
Justice Kavanaugh concurred in the result because he believed Trump’s executive order ending birthright citizenship violated a federal law—but importantly,not the 14th Amendment to the Constitution. Trump can’t amend the Constitution with an executive order. But Congress can change laws it has passed, and that seems to be precisely what Kavanaugh was encouraging them to do here, laying down a roadmap for ending birthright citizenship with a new law that would let him flip sides. Congress, he wrote, could “enact new legislation” that ends automatic citizenship for babies born to people who are “unlawfully or temporarily in the country.”
Trump was quick to jump on that bandwagon on Truth Social.
He concluded, “law-abiding AR–15 owners must rely on the goodwill of a federal agency to retain their means of self-defense.
Typical Thomas vacuity. There are plenty of means of self-defense besides an AR-15. The doctrine of original intent would hold that AR-15s could not possibly be covered by the 2nd Amendment. Muskets and flintlocks, yes. AR-15s and Glocks? No.
Joel:
This is off of the topic of your point about Thomas.
One solution could be limiting the size of the magazine. Do you really need more than 8 rounds? Type of bullet used in a protection. FMJ or hollow points? The former punches holes, the latter stays with the target. Shotguns work well and then again what round?
Thomas causes more issues with his babbling rather than being to the point of what is really needed for sef defense. He is a strange duck. Of course, this Court is littered with justices ignoring soceity for the benefit of a few who benefit by their decisions.
@Bill,
To follow up and extend that point: states and municipalities could regulate sales and ownership of rounds that can be fired by an AR-15. If the 2nd Amendment guarantees the individual right to “bear arms,” it doesn’t guarantee the right to bear the bullets fired by those “arms.”