Petitions of the week

Gun-rights advocates bring twin challenges to Maryland gun-control law

The Petitions of the Week column highlights some of the cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

The Supreme Court’s landmark 2022 gun-rights ruling in New York State Rifle and Pistol Association v. Bruen, which held that laws restricting the right to bear arms are constitutional under the Second Amendment only if a tradition of such regulation can be found in U.S. history, triggered a wave of challenges to state firearms regulations across the country. This week, we highlight petitions that ask the court to consider, among other things, two challenges to Maryland’s gun-control law in light of Bruen.

In response to the Sandy Hook Elementary School mass shooting in 2012 and other mass shootings, Maryland’s legislature passed a major gun-control law in 2013. Challengers have taken aim at two parts of the law. The first is a ban on assault rifles, such as AK-47s and AR-15s. The second is a handgun licensing regime, which requires most residents to obtain a license before purchasing a gun.

The challenge to the license requirement dates back to 2016, when a pair of gun-rights groups and Maryland residents went to federal court, arguing that the licensing requirement violates the Second Amendment. Because Maryland already mandates background checks for gun sales, the challengers emphasized, requiring residents to obtain a license before they are even eligible to buy a gun — which itself requires another background check, as well as completion of a firearms-safety course — is too restrictive of the right to bear arms.

In August 2021, a federal district court upheld the state’s license requirement. The court agreed that the requirement restricted the right to bear arms, but concluded that it was sufficiently tailored to promoting public safety — the test previously used by courts when evaluating gun-control laws under the Second Amendment. The challengers then appealed to the U.S. Court of Appeals for the 4th Circuit.

Meanwhile, in the fall of 2020, another group of Maryland residents, gun-rights groups, and a firearms dealer went to federal court to challenge the 2013 law’s assault-rifle ban. Maintaining that they have a constitutional right to possess commonly owned assault rifles, such as AR-15s, these challengers argued that a wholesale ban is incompatible with the Second Amendment.

A federal district court similarly rejected this challenge, and the U.S. Court of Appeals for the 4th Circuit affirmed. Both courts relied on an earlier ruling by the 4th Circuit that had upheld other portions of Maryland’s assault-weapons ban, on the ground that there is no fundamental right to possess military-style weapons. The challengers then appealed to the Supreme Court.

Both challenges were placed on hold when the Supreme Court announced it would hear arguments in Bruen, a case about New York’s concealed-carry law.

After the justices struck down the New York law, they sent the challenge to Maryland’s assault-weapons ban back to the 4th Circuit for reconsideration in light of the new Bruen test that gun regulations must be consistent with the historical understanding of the Second Amendment. That broad test has led to confusion among lower courts.

In June, the justices provided their first clarification of the Bruen test, upholding a federal bar on gun ownership for individuals who are subject to domestic-violence restraining orders. Chief Justice John Roberts wrote for an eight-justice majority that Bruen does not call for “a law trapped in amber,” but instead requires courts to consider whether the law at the center of the challenge “is ‘relevantly similar’ to laws that our tradition is understood to permit.”

The full 4th Circuit ultimately upheld both provisions of Maryland’s law last summer.

Judge J. Harvie Wilkinson, who was often mentioned as a possible candidate for the Supreme Court during the George W. Bush administration, wrote for the majority in rejecting the challenge to the assault-weapons ban. In that case, the court of appeals reasoned that, even after Bruen, the Second Amendment does not protect a right to own assault weapons. But even if the Second Amendment did cover assault rifles, the court of appeals continued, Maryland’s law would still be constitutional because it is consistent with a long history of states regulating dangerous firearms.

In upholding the licensing regime, the 4th Circuit looked to a footnote in Justice Clarence Thomas’s majority opinion in Bruen suggesting that laws merely requiring a background check or firearms-safety course to obtain a license to carry guns in public will generally be constitutional unless they are “abusive” — for example, because they impose excessive delays or “exorbitant” fess. The court of appeals reasoned that the same logic applies to Maryland’s requirements for a license to purchase guns in the first place. And it concluded that the additional background check was not an excessive delay, nor were the other requirements — such as the safety course — abusive.

In Snope v. Brown and Maryland Shall Issue, Inc. v. Moore, both sets of challengers ask the Supreme Court to weigh in on the Maryland law.

The challengers in Snope argue that the state’s assault-weapons ban is unconstitutional because the Second Amendment protects a right to bear all “arms,” including assault rifles. Further, they contend that Maryland’s wholesale ban on these weapons is overly restrictive of guns like the AR-15, the most commonly owned assault rifle in the United States — and thus not, in their view, a military-style weapon.

The challenges in Moore argue that Maryland’s license requirement is unconstitutional because the Second Amendment says the right to bear arms shall not be “infringed,” including by conditioning that right upon receiving a license. Moreover, they contend that Justice Thomas’s footnote in Bruen was limited to licenses to carry guns in public and does not apply to laws, like Maryland’s, which require a license to own a gun at all. But in any event, the challengers argue that the state’s requirements are “abusive” because they collectively impose an excessive delay: up to a month for a background check to obtain a license, up to a week for a second background check to purchase a gun, and additional time to complete a firearm-safety course.

Maryland urges the justices to reject both challenges. The state argues that the 4th Circuit was correct in upholding both the assault-weapons ban and the licensing requirement under Bruen. And Maryland insists that intervention now would be premature. Lower courts are just starting to grapple with the question of regulating assault weapons in light of Bruen, the state explains, and since that decision no other appeals court has weighed in on this kind of licensing requirement.

A list of this week’s featured petitions is below:

Snope v. Brown
24-203
Issue: 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.

A.J.T. v. Osseo Area Schools, Independent School District No. 279
24-249
Issue: Whether the Americans with Disabilities Act of 1990 and Rehabilitation Act of 1973 require children with disabilities to satisfy a uniquely stringent “bad faith or gross misjudgment” standard when seeking relief for discrimination relating to their education.

Mahmoud v. Taylor
24-297
Issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.

Blue Mountains Biodiversity Project v. Jeffries
24-300
Issue: Whether the Administrative Procedure Act, which requires an agency to produce its “whole record” for judicial review, permits an agency to categorically and unilaterally exclude from the administrative record materials that the agency deems deliberative.

Protect Our Parks, Inc. v. Buttigieg
24-311
Issues: (1) Whether the Obama Presidential Center project, which includes four structures constructed over 19.3 acres of Frederick Law Olmsted’s Jackson Park, located next to Lake Michigan, is a major federal action under the federal environmental laws because the roadwork required due to the destruction and alteration of its internal roadwork, necessitated by that construction, is federally funded; (2) whether a federal court can properly defer to a federal agency’s narrow, unsupported and highly deferential definition of a major project and thus escape review under this court’s recent decision in Loper Bright v. Raimondo and its well-established decision in Citizens to Preserve Overton Park, Inc. v. Volpe; (3) whether the federal reviews of the center relied upon below employed illegal segmentation to allow large portions of the undertaking to escape federal review under the federal environmental laws; (4) whether the U.S. Court of Appeals for the 7th Circuit erred in deferring to the federal agencies that either ignored or belittled the destruction of hundreds of trees, migratory bird habitats, and other key environmental effects in declining to require an environmental impact statement; (5) whether the 7th Circuit erred in affirming the trial court’s denial of the plaintiffs’ only motion for leave to amend pursuant to Federal Rule of Civil Procedure 15, which was filed before any discovery began, before any schedule was set, and before any trial date was set; and (6) whether the 7th Circuit’s refusal to reverse the dismissal under Federal Rule of Civil Procedure Rule 12(b)(6) of state law claims violated both Illinois law and this court’s precedents dealing with the duty of loyalty, duty of care, and nondelegation and public-trust doctrines.

Roman Catholic Diocese of Albany v. Harris
24-319
Issues: (1) Whether a law is “neutral” and “generally applicable” under Employment Division v. Smith where it exempts certain religious organizations — but not others — based on narrow and subjective religious criteria unrelated to the law’s purpose, or instead such laws are subject to strict scrutiny; and (2) whether, if the First Amendment permits such discrimination among religious organizations under the rule announced in Smith, that decision should be overruled.

Franklin v. New York
24-330
Issues: (1) Whether the Sixth Amendment’s confrontation clause applies to out-of-court statements admitted as evidence against criminal defendants if, and only if, the statements were created for the primary purpose of serving as trial testimony; and (2) whether a post-arrest report prepared about a criminal defendant by an agent of the state for use in a criminal proceeding can be admitted as evidence against the defendant at trial, without providing a right to cross-examine the report’s author.

IBM Corp. & Combined Affiliates v. New York Tax Appeals Tribunal
24-332
Issue: Whether a state may impose a “heads I win, tails you lose” regime that taxes either side of an interstate or foreign transaction, depending on which side has a nexus to the state, even though such a regime would inherently disadvantage interstate and foreign commerce if it were replicated by every jurisdiction.

The Walt Disney Co. v. New York Tax Appeals Tribunal
24-333
Issue: Whether a state tax law that on its face treats royalty income derived from corporate affiliates less favorably if the affiliates do not subject themselves to the state’s jurisdiction facially discriminates against interstate and foreign commerce.

FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd.
24-345
Issue: Whether Section 47(b) of the Investment Company Act creates an implied private right of action.

Port of Tacoma v. Puget Soundkeeper Alliance
24-350
Issue: Whether Section 505 of the Clean Water Act authorizes citizens to invoke the federal courts to enforce conditions of state-issued pollutant-discharge permits adopted under state law that mandate a greater scope of coverage than required by the act.

Comcast Cable Communications, LLC v. Ramsey
24-365
Issue: Whether the Federal Arbitration Act preempts California’s rule established in McGill v. Citibank.

Maryland Shall Issue, Inc. v. Moore
24-373
Issue: Whether Maryland’s handgun qualification license requirement violates the Second Amendment.