Supreme Court Second Amendment Update 5-15-2025
There are six more conferences where the justices of the United States Supreme Court will vote on petitions for a writ of certiorari before they go on their summer break at the end of June. Prior to reconvening on the first Monday in October, there will be a “long conference” toward the end of September where the justices dispose of the cert petitions that were not disposed of by the end of June, and those where a response (or waiver to respond) were filed during their summer break.
In years past, that long conference typically disposed of far more than 1,000 petitions, but the number of petitions filed each term has significantly declined in recent years. Still, if the past is prologue, the long conference is the conference in which the most petitions will be denied. Last term, 619 petitions that were briefed too late for the 2023-2024 term were disposed of, plus 406 docketed after July 1, 2024, for a total of 1025 petitions. That includes writs of mandamus/prohibition, motions for rehearing, etc.
There are a dozen Second Amendment cert petitions scheduled for this Thursday’s SCOTUS conference. Three are of note: The interlocutory appeal of the Rhode Island ban on magazines that hold more than ten rounds (Ocean State Tactical), the appeal of the final judgment challenging Maryland’s semiautomatic rifle ban (Snope), and the return of Edell Jackson, Petitioner v. United States No. 24-6517, in which the Eighth Circuit Court of Appeals held that individuals cannot challenge the Federal law that prohibits persons from possessing firearms who were convicted of felonies punishable by more than one year of confinement or persons convicted of state law misdemeanors punishable my more than two years of confinement (18 U.S.C. § 922(g)(1)).
Quoting from the Ezell cert petition:
On 2 July 2024, shortly after the Rahimi opinion was released, this Court granted Jackson’s petition for certiorari, vacated the judgment of the court of appeals, and remanded the case (along with others raising the same or related issues) for reconsideration in light of Rahimi. Only days after this Court’s mandate issued, the Eighth Circuit issued a slightly revised opinion (Jackson II) that was filed on 8 August 2024. Jackson II is virtually identical to Jackson I. A few brief references to the Rahimi decision have been added, the first simply noting that nothing has changed: “Rahimi does not change our conclusion in this appeal, and we again affirm the judgment of the district court.” Appendix, at A-2. The second noted that neither Bruen nor Rahimi cast doubt on the dictum in Heller regarding “presumptively constitutional” firearms prohibitions. Appendix, at A-10-11. And despite Rahimi’s express reliance on a particularized finding of dangerousness in that case, Jackson II concluded that “there is no requirement for an individualized determination of dangerousness as to each person in a class of prohibited persons.” Appendix, at A-16. It thereby effectively closed the door on all asapplied constitutional challenges to the statute in the Eighth Circuit, clinging firmly to the holding in Jackson I that “there is no need for felony-by-felony litigation regarding the constitutionality of §922(g)(1).” Appendix, at A-11. One thing the Ezell petition has going for it that Ocean State Tactical and Snope do not have is a Supreme Court Rule 10 circuit split. The 9th Circuit Court of Appeals recently added to that split when an en banc panel held that those prohibited from possessing firearms are categorically prohibited from challenging their lifetime loss of their Second Amendment rights. According to the 9th Circuit, it does not matter if the conviction was for a non-violent offense. Legislatures get to decide what crimes result in a lifetime loss of one’s Second Amendment rights. If a state wants to make jaywalking or parking tickets misdemeanors punishable by two or more years of incarceration, resulting in a lifetime loss of Second Amendment rights, they can, and that does not violate the Second Amendment.
Contrary to popular belief, the United States Supreme Court does not view its job as correcting the mistakes of the lower courts. Its primary job is resolving Rule 10 splits between the Federal circuits and state courts of last resort on questions of Federal law. Rarely does the Supreme Court grant a cert petition that does not present a circuit split.
Neither the magazine ban nor the rifle ban petitions present a Rule 10 split.
Masterpiece Cakeshop, Ltd., et al., Petitioners v. Colorado Civil Rights Commission, et al., was distributed for conference 19 times, and rescheduled twice, meaning it was voted on 17 times before the petition found the necessary vote of four justices to grant the petition. According to John Elwood, of the SCOTUSblog Relist Watch, Masterpiece Cakeshop holds the record for the number of relists in his 15 years of counting relists.
Subtracting the times they were rescheduled, Ocean State and Snope have been voted on in conference 13 times. By way of comparison, the NYSRPA v. Bruen cert petition was granted after its fourth conference, NYSRPA v. NYC (dismissed as moot), was granted after its third conference, Caetano v. Massachusetts was voted on 11 times before it was GVR’d (granted, vacated, and remanded) for a do-over, McDonald v. City of Chicago was granted after its first conference, and District of Columbia v. Heller was granted after its second conference.
Nobody knows what will eventually happen to Ocean State and Snope. The only people who know what is happening to them are the justices and their clerks, and they aren’t talking.
If Ocean State is denied cert, the Shill-Tubers will minimize the dismissal by saying, “Well, it was just an interlocutory appeal.” Given that Andrew Hanson, et al., Petitioners v. District of Columbia, et al. No. 24-936 is a “large capacity” magazine ban petition from a final judgment; the denial of Ocean State will be an ominous omen because SCOTUS could have held Ocean State, granted Hanson, and disposed of both cases.
The Trump administration defends the categorical ban in Ezell. It argues that persons subject to a lifetime loss of their Second Amendment rights can apply to the Federal Department of Justice for an exemption to the ban. As Ezell correctly pointed out in his reply brief, that exemption only permits relief from the disabilities imposed by Federal laws and is no relief at all for the majority of the population who live in states that also impose indefinite prohibitions on the possession of firearms by felons.
SCOTUS has denied every cert petition challenging the Federal ban. The GVR of Ezell the last time around was because SCOTUS had just issued its decision in US v. Rahimi. All of the Second Amendment cert petitions pending at the time were GVR’d for a do-over in light of Rahimi.
If Ezell is denied, it would be disingenuous to say that it was denied because it was a “poor vehicle” for deciding whether or not the law is constitutional. There was the perfect vehicle to challenge the law if the Trump administration had wanted the law to be challenged, Pamela Bondi, Attorney General, et al., Applicants v. Bryan David Range No. 24A881. The Third Circuit Court of Appeals held that individuals can challenge the law as it applies to them and invalidated it as it applies to Mr. Range because of his nonviolent felony conviction. The Trump administration filed for an extension of time to file its cert petition, but never filed it.
The following cases are scheduled for the next conference. Click on the case number, and you will be taken to the SCOTUS docket for that case, should you wish to take a deep dive into the case. As always, if a waiver was filed (or no response was filed) and the petition goes into conference without a justice requesting a response, the petition was never voted on, the petition was placed on the SCOTUS deadlist and will appear as “Petition Denied” on the next Orders list. A “GVR” is a Grant, Vacate, and Remand, which, for all intents and purposes, sends the case back to the lower courts for a do-over. In the past two terms, I can only recall one petition where the Feds asked for a GVR, which was denied. I chalk that up to a clerical error. Ocean State Tactical, LLC, dba Big Bear Hunting and Fishing Supply, et al, Petitioners v. Rhode Island, et al. No. 24-131 The questions presented are: 1. Whether a retrospective and confiscatory ban on the possession of ammunition feeding devices that are in common use violates the Second Amendment. 2. Whether a law dispossessing citizens without compensation of property that they lawfully acquired and long possessed without incident violates the Takings Clause. David Snope, et al., Petitioners v. Anthony G. Brown, in His Official Capacity as Attorney General of Maryland, et al. No. 24-203 QUESTION PRESENTED Whether the Constitution permits the State of Maryland to ban semiautomatic rifles that are in common use for lawful purposes, including the most popular rifle in America. Edell Jackson, Petitioner v. United States No. 24-6517 Question Presented for Review Whether 18 U.S.C. § 922(g)(1), the statute prohibiting possession of firearms by persons convicted of a crime punishable by imprisonment for a term exceeding one year, is susceptible to an as applied constitutional challenge, and whether it violates the Second Amendment as applied to Petitioner Edell Jackson. Derrick Fitzgerald Dial, Petitioner v. United States No. 24-6569 QUESTIONS PRESENTED Is the lifetime ban on possession of firearms by all felons, codified at 18 U.S.C. § 922(g)(1), unconstitutional on its face, because it is permanent and applies to all persons convicted of felonies, even those who are not violent? And is it unconstitutional as applied to Mr. Dial, who has no violent convictions? Jesus Perez-Garcia and John Thomas Fencl, Petitioners v. United States No. 24-6203 QUESTION PRESENTED Petitioners raised as-applied Second Amendment challenges to firearms-related conditions of pretrial release. After their cases mooted, but before this Court issued a decision in United States v. Rahimi, 602 U.S. 680 (2024), the Ninth Circuit published an opinion rejecting that challenge. Since Rahimi, this Court has granted at least 19 certiorari petitions raising diverse Second Amendment issues, vacated the opinions below, and remanded. The questions presented are: (1) Whether this Court should grant this petition, vacate the Second Amendment opinion below, and remand with instructions to dismiss the case as moot. (2) Whether courts have Article III jurisdiction to issue a reasoned judicial opinion after a case becomes moot, so long as they announce the case’s disposition before the case moots. Donald Turner, Petitioner v. United States No. 24-7011 (Waiver filed) QUESTION PRESENTED Whether the standard for appellate review of a Second Amendment claim raised before a sentencing proceeding and decided on the merits by the district court over a Rule 12 waiver objection by the government, is subject to de novo review, as Petitioner claimed, or is waived because of alleged untimeliness under Rule 12 as the First Circuit held, or is subject to plain error review as every circuit (including the First Circuit in other cases) has repeatedly held as to claims not made in the trial court. LaMorris Allan French, Petitioner v. United States No. 24-6623 QUESTION PRESENTED Is the lifetime ban on possession of firearms by all felons, codified at 18 U.S.C. § 922(g)(1), plainly unconstitutional on its face under New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), because it is permanent and applies to all persons convicted of felonies? Broxstonie Demichael Mitchell, Petitioner v. United States No. 24-6516 QUESTION PRESENTED Is the lifetime ban on possession of firearms by all felons, codified at 18 U.S.C. § 922(g)(1), plainly unconstitutional on its face under New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), because it is permanent and applies to all persons convicted of felonies? Xavier Armon Parker, Petitioner v. United States No. 24-6755 The question presented is: Whether there is an obvious and irreconcilable clash between §922(g)(1) and the rights protected by the Second Amendment. Paul Corey Martinez, Petitioner v. United States No. 24-6759 The question presented is: Whether there is an obvious and irreconcilable clash between §922(g)(1) and the rights protected by the Second Amendment. Shannon Lamon Anderson, Petitioner v. United States No. 24-6788 QUESTION PRESENTED Is the lifetime ban on possession of firearms by all felons, codified at 18 U.S.C. § 922(g)(1), plainly unconstitutional on its face under New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), because it is permanent and applies to all persons convicted of felonies? Ismael Moises Haynes, Petitioner v. United States No. 24-6794 QUESTION PRESENTED Is the lifetime ban on possession of firearms by all felons, codified at 18 U.S.C. § 922(g)(1), plainly unconstitutional on its face under New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), because it is permanent and applies to all persons convicted of felonies?