Earlier today I covered why one Supreme Court-watcher is optimistic about the justices taking up bans on so-called assault weapons and large capacity magazines next term, but those aren’t the only 2A issues that will be discussed in tomorrow’s conference. There are two cases making their first appearance in the justice’s closed door meeting that could be granted cert (or denied) as early as next Monday, and both are worth taking up… and talking about.
The first case is U.S. v. Peterson; a challenge to the National Firearms Act’s restrictions on suppressors. Specifically, the attorneys for plaintiff George Peterson are asking SCOTUS to address two questions: First, whether the National Firearms Act’s taxation-and-registration scheme for covered firearms can be justified as a licensing law, and whether the National Firearms Act’s taxation-and-registration scheme violates the Second Amendment with respect to firearm suppressors.
The Trump administration waived its right to reply to the cert petition, and it’s not a great sign for the plaintiffs that not a single justice asked the DOJ to reply anyway. To date, though, Trump’s DOJ has argued that, while suppressors may be protected “arms” under the Second Amendment, the $200 tax (which has now been zeroed out by the One Beautiful Bill Act) and registration requirement (which is still in place) represent “modest” burdens on our right to keep and bear arms.
The plaintiffs have made strong arguments about why that is not the case, but they weren’t able to prevail in the fairly conservative and 2A-friendly Fifth Circuit, which treated the taxation-and-registration scheme as akin to a shall-issue-licensing law. I’ll be thrilled if I’m wrong, but my hunch is that the justices aren’t ready to wade into the thorny questions posed by the plaintiffs here. If SCOTUS grants cert to a case dealing with bans on “assault weapons” and “large capacity” magazines the odds of a cert grant in Peterson would improve, but I can’t see SCOTUS addressing the constitutionality of the NFA and its treatment of suppressors before it takes up gun and magazine bans… at least not with an outcome that gun owners will appreciate.
The other Second Amendment case making its first Friday appearance in conference is Gardner v. Maryland, which poses three questions to the Court:
1. Does Maryland’s prohibition on carrying a handgun without a state permit, as applied to an interstate traveler with a valid Virginia concealed carry permit who displayed a loaded firearm in self-defense against an assailant’s vehicular assault and physical advance, violate the Second Amendment under New York State Rifle & Pistol Ass’n v. Bruen… by lacking a historical tradition of disarming law-abiding citizens in such circumstances?
2. Did the Maryland courts’ reliance on a video showing the assailant’s calm demeanor upon police arrival, without his testimony or other witnesses to corroborate the incident, while disregarding Petitioner’s evidence of the assailant’s PIT maneuver, vehicular coercion, and physical advance, violate the Fourteenth Amendment’s Due Process Clause by denying Petitioner a meaningful opportunity to present a self-defense claim?
3. Does Maryland’s refusal to recognize Petitioner’s valid Virginia concealed carry permit for interstate travel violate the Full Faith and Credit Clause, U.S. Const, art. IV, § 1, or the Firearms Owners’ Protection Act (18 U.S.C. § 926A), despite the firearm being loaded and Pennsylvania’s non-recognition of the permit at the time of the incident?
Eva Marie Gardner is serving as her own attorney here, and that alone greatly decreases the odds of the justices granting cert. Pro se litigants have argued before the Supreme Court in just 84 cases since 1945, according to a 2024 law review article by Oklahoma attorney Kyle Persaud. The good news for Gardner is that, according to Persaud, a majority of those pro se litigations who have been able to present their case to the justices have obtained “some or all” of the relief they were seeking.
In the case of Gardner, I think most of us would be overjoyed if the Court decided questions 1 and 3 are worth answering, especially the first one. The Second Amendment is not a second-class right, says SCOTUS, but it’s the only right that can be curtailed just by crossing a state line. Why shouldn’t my Virginia carry license allow me to possess a concealed handgun in Maryland, just like my Virginia driver’s license allows me to take my vehicle onto Maryland streets?
Is it enough that most states (including Hawaii, thanks to the efforts of Alan Beck) allow non-residents to apply for a carry permit or license? Absolutely not. I’m going to up to Massachusetts for a Gun Owners Action League event in June. In order for me to lawfully carry while I’m there, I would have had to applied months ago in order to be approved by the time I get there. And while I could initiate my application online, before I could be approved I’d have to make a separate trip to the state and sit for an in-person interview, submit my fingerprints, and be photographed.
Imagine if every state in the Union had those kinds of requirements in order to get a non-resident permit. As it is and even with various state-level reciprocity agreements, it would take thousands of dollars and thousands of miles traveled in order to be able to carry in the vast majority of states. We don’t have to spend a dime beyond the cost of transportation if we want to exercise our First, Fourth, or Fifth Amendment rights while visiting a state other than the one we call home. Why should our Second Amendment rights be treated any differently? And how can they be treated differently without them being turned into the second-class rights SCOTUS says they’re not?
I’d love it if Gardner bucked the odds and was able to argue her case in front of the Supreme Court, but again, I’m not expecting that to happen.
The Court has already rejected one case this term that dealt with non-resident carry, though the question posed in Marquis v. Massachusetts (Does Massachusetts’ firearms licensing regime, which grants a police colonel the power to deny any nonresident traveler a temporary firearms license based upon that officer’s judgment of “unsuitability,” violate nonresident travelers’ constitutional rights to keep and bear arms and to interstate travel) was significantly different than the ones Gardner asks.
There are plenty of other cases addressing the same general issue of carrying beyond your home state that are making their way through the fedeal court system and will also wind up at SCOTUS in the next few years. I’ll be over the moon if the justices prove me wrong, but my guess is we’re going to be waiting a term or two before the Court is ready to weigh in on our Second Amendment rights and state lines.
Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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