An unusually large pileup of Second Amendment challenges has landed at the Supreme Court, which will consider taking up the cases behind closed doors Friday.
It would add to what is already a major term for gun rights. The justices previously agreed to hear two cases early next year that involve whether unlawful drug users can carry firearms and Hawaii’s gun permitting regime.
As those cases move ahead, the new petitions present additional opportunities for the conservative majority to make clear the bounds of its recent gun rights expansion.
Felon in possession
Most of the new challenges concern the federal law that makes it a crime for people with felonies on their records to possess a firearm.
It’s one of the most prosecuted federal charges. Of the 61,678 cases reported to the U.S. Sentencing Commission in fiscal 2024, roughly 6,700 of them — more than 10 percent — involved felon-in-possession convictions.
The man who attempted to assassinate President Trump at his Florida golf course last year was convicted of the charge in September.
But the provision has come under increased scrutiny in the wake of the Supreme Court’s gun rights expansion. Three years ago, the conservative majority announced a new test that requires gun control measures be consistent with the nation’s historical tradition of firearm regulation in order to be compliant with the Second Amendment.
Ever since that ruling, criminal defendants across the country have pleaded with the justices to hear their constitutional defenses.
The justices have rejected dozens of attempts, but that could soon change.
At the Supreme Court’s weekly conference Friday, it will consider more than 60 defendants’ petitions challenging the law, according to The Hill’s review of the court’s docket.
The nine justices meet behind closed doors with no clerks or aides allowed inside the room, and the court typically announces any cases they’ve agreed to take up either later Friday or Monday.
Notably, many of the petitions have been “relisted,” meaning the justices considered them at last week’s conference but took no action. Instead, they punted and put the petitions on the list again for this week’s meeting.
It’s a sign that at least one justice is taking a close look. When the court wants to take up a case, it nearly always relists it first. Other times, the court relists a petition when it plans to turn away the case but a justice is drafting a written dissent or statement.
It remains unclear why the justices have relisted the dozens of felon-in-possession challenges. If they punt again at this week’s meeting, the justices’ next conference won’t take place until the new year.
The consideration comes as the justices have already agreed to hear a challenge to a neighboring provision of federal law that makes it a crime for unlawful drug users to possess firearms.
The Trump administration acknowledged “some disagreement” in the lower courts about the felon-in-possession law but urged the Supreme Court to turn away the challenges.
It pointed to the administration’s revitalization of a program that enables felons to appeal to Attorney General Pam Bondi to get their gun rights back by showing they aren’t a danger to public safety.
“Any disagreement among the circuits likely lacks prospective importance—and may even evaporate entirely—because of the recent revitalization,” the Justice Department wrote in court filings.
AR-15 bans
In June, the Supreme Court declined to hear a challenge to Maryland’s AR-15 ban.
Only three conservatives voted to take the case: Justices Clarence Thomas, Samuel Alito and Neil Gorsuch. That’s one short of the four required.
But Justice Brett Kavanaugh wrote a three-page statement suggesting he’d provide his vote once the issue percolates more in other appeals courts, calling AR-15 bans “questionable.”
“In my view, this Court should and presumably will address the AR–15 issue soon, in the next Term or two,” Kavanaugh wrote.
Now in the next term, the issue has returned to the Supreme Court. This time, the lawsuit at hand comes from individuals and gun rights groups, who challenge an AR-15 ban in Cook County, Ill., which includes Chicago.
“This case provides the Court with a vehicle for following through on Justice Kavanaugh’s recommendation,” the challengers wrote.
They are represented by Cooper & Kirk, a Washington, D.C.-based law firm that regularly represents parties in gun rights cases.
Cook County is urging the Supreme Court to stay out.
The county argues the challengers rushed to court to lose and seek the justices’ review, saying they forfeited their Second Amendment arguments by failing to compile an “adequate” factual record for the lower judges.
“In fact, this case only demonstrates that significant percolation among the lower courts will be necessary before the constitutionality of assault weapons regulations – indeed, the constitutionality of any regulation of a particular kind of weapon – is ripe for this Court’s final adjudication,” the county wrote.
Like the felon-in-possession cases, the court also relisted the AR-15 ban petition.
Ten states have passed assault weapons bans, though the definition varies in each law, according to Everytown for Gun Safety, a group that supports stronger gun control measures.
High-capacity magazine bans
State and local bans on high-capacity magazines have also become a front in the battles over the Second Amendment, but the Supreme Court has yet to definitively settle the issue.
Challengers to bans imposed in California and Washington state hope their cases will change things, and the justices have relisted both petitions for this week’s conference.
Both groups of challengers are represented by Clement & Murphy, the law firm founded by prominent conservative lawyers Paul Clement and Erin Murphy. Clement argued the three biggest gun rights cases decided by the Supreme Court over the past two decades.
The National Association for Gun Rights, National Rifle Association (NRA), other gun rights groups and 26 Republican state attorneys general filed briefs urging the court to take up one or both of the cases.
“Nothing in the plain text of the Second Amendment mentions the size of a magazine or the specific features of a firearm,” the NRA wrote in the Washington case. “The plain text provides categorical, presumptive protection for all bearable arms.”
Fourteen states have passed restrictions on magazine capacity with limits ranging from 10 and 20 rounds, according to the U.S. Concealed Carry Association, a gun owner group.
In fending off legal challenges, the states have insisted their restrictions comply with the conservative majority’s recent decisions, saying high-capacity magazines aren’t protected by the Second Amendment because they aren’t “arms” and aren’t commonly used for self-defense.
“Washington’s law is consistent with an unbroken tradition of weapons restrictions stretching back to our nation’s pre-history,” the state wrote to the Supreme Court.