Will SCOTUS Take a Gun and Magazine Ban Case Before More Take Effect?

The Supreme Court will meet in conference this Friday, and among the cases scheduled for discussion are two that deal with bans on commonly owned ammunition magazines, as well as a three challenges to state and local bans on so-called assault weapons. If the Court once again turns away a challenge to these bans, or even keeps them in limbo for the rest of the term, millions more Americans could be subject to these prohibitions by the time the justices have the opportunity address the issue once again. 

At the moment, bans on so-called assault weapons are in place in ten states, but lawmakers in three others are pushing hard to enact their own gun bans. 

In Virginia, a ban on the sale, manufacture, and transfer of “assault firearms” has already cleared the Senate, and New Mexico state senators have approved an even broader ban targeting the sale, manufacture, and transfer of every gas-operated semiautomatic long gun that can accept detachable magazines (as well as those firearms with a fixed magazine capacity of more than ten rounds). 

As we discussed earlier today, Democrats in Minnesota are also launching an attack on semi-automatic rifles led by Gov. Tim Walz, though the move faces an uncertain future given the divided control of the state legislature. Still, it’s quite possible that if the Court doesn’t take action on the pending cases soon, millions of Virginians and New Mexicans will lose access to the most popular rifles in the country. 

Here’s another concern: if SCOTUS outright rejects the legal challenge to California’s ban on “large capacity” magazines known as Duncan v. Bonta, existing owners of those magazines will be forced to either permanently modify them, hand them over to police, move them out of state, or destroy them. That aspect of California law has been on hold since U.S. District Judge Roger Benitez ruled the ban unconstitutional in March 2019, but if the Supreme Court denies cert then the law will be able to be enforced in its entirety, including its prohibition on possession of magazines that can hold more than ten rounds. 

SCOTUS already allowed that to happen to Rhode Island residents when it denied cert in Ocean State Tactical v. Neronha last year, but giving the green light to California’s magazine ban would have a much larger impact, given the sheer number of California gun owners. 

So what are the chances of the Supreme Court accepting Duncan, Gator’s Custom Guns v. Washington, and any of the three gun ban cases (Viramontes v. Cook County, NAGR v. Lamont, and Grant v. Higgins)? Last year, when the justices turned away Ocean Tactical and Snope v. Brown (a lawsuit challenging Maryland’s “assault weapon” ban), Justices Gorsuch and Alito indicated they would have taken the case, and Justice Clarence Thomas almost certainly would have as well. 

Justice Brett Kavanaugh voted against accepting the case, but said in a statement respecting the denial of certiorari that “that the Court agrees with a lower-court decision or thatthe issue is not worthy of review.”

The AR–15 issue was recently decided by the First Circuit and is currently being considered by several other Courts of Appeals. Opinions from other Courts of Appeals should assist this Court’s ultimate decisionmaking on the AR–15 issue. Additional petitions for certiorari will likely be before this Court shortly and, in my view, this Court should and presumably will address the AR–15 issue soon, in the next Term or two.

If the justices are waiting for a circuit court split to develop before they grant cert to a hardware ban case, the conservative wing of the Court should be praying that the Third Circuit issues its opinion in Association of N. J. Rifle & Pistol Clubs v. Platkin before Friday. The appellate court heard oral arguments over New Jersey’s semi-auto ban four months ago, and it’s widely expected to rule against New Jersey when the en banc opinion is released. That would mark the first time that an appellate court has found an “assault weapon” ban unconstitutional, with the Second, Fourth, Seventh, Ninth, and D.C. Circuit previously upholding bans (though in some cases, not since the Bruen decision in 2022). 

Part of the problem with waiting for a circuit court split is that these laws are only in place in 20% of the states, and none of them are located in the jurisdiction of more conservative appellate courts like the Fifth Circuit. The Third Circuit, though, recently flipped to a majority of Republican-appointed judges, and has already shown it treats the Second Amendment seriously by ruling that federal prohibitions on gun ownership by those convicted of crimes punishable by more than a year in prison and “unlawful” users of drugs can, in some cases at least, violate the Second Amendment. 

If the Third Circuit doesn’t release its decision in the New Jersey gun ban case before the next conference, the Court could still grant cert to one or more of the lawsuits above, but it’s hard to see what’s changed, legally speaking, since Snope and Ocean State Tactical were turned away last year. The justices could also keep ahold of these cases for another week (or even longer) with the expectation that a circuit court split may soon develop. But unfortunately, they could also deny cert to each and every one of these cases and let the prohibitions in California; Washington, Connecticut, and Cook County, Illinois remain in place. 

The Court also doesn’t have to follow its own rules. The justices generally like to wait for a case to be fully briefed and decided before granting cert, but they took Wolford v. Lopez at the preliminary injunction stage this term. A circuit court split might be preferred, but it’s not necessary to grant cert, and perhaps the prospect of several more states adopting these bans will spur at least four justices to vote to take a case sooner rather than later. 

I’m actually fine with more punting if it’s because they are waiting for the 3rd Circuit and 7th Circuit rulings. For Duncan especially, holding it indefinitely is critical.

I’ll only crash out if they deny cert. Because that would mean that all of us legal and peaceable gun… https://t.co/NoU4KU3w6F

— Kostas Moros (@MorosKostas) February 13, 2026

Granting cert is obviously the best choice, but I’m with Kostas here. Kicking the can down the road isn’t ideal, but an outright denial of cert, particularly in Duncan, would mean that a huge number of California gun owners would become criminals simply for keeping the magazines they currently own. Even if justices like Kavanaugh, Barrett, and Roberts aren’t yet convinced that the issue is ripe for review, if they believe that these laws are likely unconstitutional they’ll do what they can to prevent that nightmare scenario from becoming reality in California.