Maryland Attorney General Anthony Brown’s attempt to delay Supreme Court consideration of the state’s ban on so-called assault weapons didn’t pan out as he’d hoped. Late on Friday, SCOTUS issued an unsigned order granting Brown two additional weeks to file his response to a cert petition seeking Supreme Court review of a Fourth Circuit decision upholding the gun ban. At first glance, that appears to be a win for Brown, but as the Firearms Policy Coalition noted, the delay shouldn’t derail SCOTUS granting cert by the end of the year.
FPC had objected to Brown’s request for a second 30-day extension, arguing that another month-long delay would push consideration back until January 10, 2025. Instead, they suggested a 13-day extension if the justices wanted to give Brown a little extra time to respond, which would put Snope v. Brown on the schedule for the Court’s December 6th conference.
According to attorney Mark Smith of Four Boxes Diner, the new schedule means that Snope will first be heard in conference on December 13. That’s the last conference of the calendar year, so if the Court acts promptly and grants cert, the oral arguments in the challenge to Maryland’s ban on “assault weapons” would likely take place next spring, with a verdict handed down towards the end of the Court’s term in May or June of next year.
Now, there’s no guarantee that the Court will grant cert after just one conference. Heller and Bruen were both re-listed and discussed in conference for several weeks before the justices accepted those cases, and the same could happen to Snope as well.
Smith, however, sees this development as a good sign for the plaintiffs, noting that typically, the justice that presides over a particular court of appeals decides whether or not to grant extensions. Chief Justice John Roberts happens to be the justice that oversees the Fourth Circuit Court of Appeals, where Snope originated, and if it was Roberts who laid out the new schedule, it’s a pretty good sign that the chief justice is unwilling to kick this particular can down the road another few months.
It takes four justices to grant cert, and five to win on the merits. It’s a pretty solid assumption that Gorsuch, Alito, and Thomas are eager to hear Snope, but Kavanaugh, Barrett, and Roberts are a little harder to pin down. Of the three, Kavanaugh is probably the most likely to vote in favor of granting cert, since he’s previously opined that bans on semi-automatic firearm labeled “assault weapons” are unconstitutional. In a 2011 challenge to Washington, D.C.’s ban on modern sporting rifles, Kavanaugh dissented from the majority on the D.C. Circuit Court of Appeals, holding that the District’s ban violated the Second Amendment by banning firearms that are in common use for lawful purposes.
Kavanaugh hasn’t said or done anything to indicate he’s moved away from that position, so there should be at least four votes to grant cert to Snope. Chief Justice Roberts’ decision to deny Maryland the full 30-day extension Brown was asking for doesn’t only mean that the case will be heard in at least one conference this year. It may very well be a sign that Roberts is ready to overturn the Fourth Circuit and cast a deciding vote holding the state’s ban unconstitutional.
If Roberts was inclined to accept the Fourth Circuit’s decision, he could easily have granted Maryland the full 30 days the AG requested. There’s no rush to decide whether or not to hear Snope if Roberts plans on upholding the lower court’s ruling. The ban is currently in place, and that will remain the case until the Supreme Court rules otherwise. If Roberts was the justice to give Maryland just a couple of extra weeks, however, that’s at least an indication that Roberts isn’t happy with appellate courts like the Fourth and the Seventh Circuits holding that commonly-owned semi-automatic rifles aren’t protected by the Second Amendment because they’re too similar to the full-auto and select-fire rifles used by the military. And if that’s the case, then Roberts may very well be the fifth vote to find the ban unconstitutional.
I’m not thrilled that Maryland has been given a few more days to file its response to the cert petition, but I’m optimistic that the Court will quickly grant cert once the case is heard in conference in mid-December. After Friday’s order, I’m also pretty bullish on there at least five votes in favor of striking down the ban and holding that semi-automatic firearms are just as protected by the text, history, and tradition of gun ownership as muskets were back in 1791, or repeating rifles in 1868.
