Harrel v. Raoul, Denial of Certiorari

The State of Illinois enacted a law that makes it a felony to possess what Illinois branded “assault weapons,” a term defined to include AR–15s. See Ill. Comp. Stat., ch. 720, §5/24–1.9(a)(1)(J)(ii)(II) (West 2023). “The AR–15 is the most popular semi-automatic rifle” in America and is therefore undeniably “in common use today.” Heller v. District of Columbia, 670 F. 3d 1244, 1287 (CADC 2011) (KAVANAUGH, J., dissenting); see also Garland v. Cargill, 602 U. S. 406, 430–431 (2024) (SOTOMAYOR, J., dissenting) (describing “semiautomatic rifles” such as the AR–15 as “commonly available”). Petitioners sought a preliminary injunction against the enforcement of the law, arguing that the law violates their Second Amendment right to “keep and bear Arms.” The Court of Appeals for the Seventh Circuit rejected petitioners’ request for a preliminary injunction, concluding “that the AR–15 … is not protected by the Second Amendment.” Bevis v. Naperville, 85 F. 4th 1175, 1197 (2023). According to the Seventh Circuit, the rifle selected by millions of Americans for self-defense and other lawful purposes does not even fall within the scope of the Arms referred to by the Second Amendment. Ibid. This Court is rightly wary of taking cases in an interlocutory posture. But, I hope we will consider the important issues presented by these petitions after the cases reach final judgment.
—Harrel v. Raoul, Denial of Cert, 603 U.S. ____ (2024) Statement of Justice Thomas

We knew that Sotomayor wasn’t the sharpest crayon in the box, I love how Justice Thomas cites to her opinion saying that AR-15s are in common use.

…does not even fall within the scope of …: That should have Easterbrook and Woods looking for a rock to crawl under. That is a strong rebuke, coming from the Supreme Court.

The Seventh Circuit’s decision illustrates why this Court must provide more guidance on which weapons the Second Amendment covers. By contorting what little guidance our precedents provide, ⁣ the Seventh Circuit concluded that the Second Amendment does not protect “militaristic” weapons. See 85 F. 4th, at 1199. It then tautologically defined “militaristic” weapons as those “that may be reserved for military use.” Id., at 1194. The Seventh Circuit’s contrived “non-militaristic” limitation on the Arms protected by the Second Amendment seems unmoored from both text and history. See Friedman v. Highland Park, 577 U. S. 1039, 1041 (2015) (THOMAS, J., dissenting from denial of certiorari). And, even on its own terms, the Seventh Circuit’s application of its definition is nonsensical. See 85 F. 4th, at 1222 (Brennan, J., dissenting) (“The AR–15 is a civilian, not military, weapon. No army in the world uses a service rifle that is only semiautomatic”). In my view, Illinois’ ban is “highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes.” Friedman, 577 U. S., at 1042 (opinion of THOMAS, J.). It is difficult to see how the Seventh Circuit could have concluded that the most widely owned semiautomatic rifles are not “Arms” protected by the Second Amendment.
—id.

That is one hell of a spanking of Easterbrook and Woods.

These petitions arise from a preliminary injunction, and the Seventh Circuit stressed that its merits analysis was merely “a preliminary look at the subject.” 85 F. 4th, at 1197. But, if the Seventh Circuit ultimately allows Illinois to ban America’s most common civilian rifle, we can—and should—review that decision once the cases reach a final judgment. The Court must not permit “the Seventh Circuit [to] relegat[e] the Second Amendment to a second-class right.” Friedman, 577 U. S., at 1043 (opinion of THOMAS, J.).
—id.

In reading the statement of Justice Thomas, there is a threat there. Of course, the Seventh Circuit will ignore the threat. There is nothing the Supreme Court can actually do to rogue inferior courts and judges.

We knew that these cases were a long shot. The Supreme Court seldom grants certiorari when a case is in an interlocutory position.

An interlocutory position is when a case is not yet final, at the inferior court levels.

The sequence of actions is normally a request for a Temporary Restraining Order (TRO). This is a motion by the plaintiffs for the court to enjoin something until the court can evaluate a motion for a preliminary injunction.

Once the TRO is granted, or not, the parties brief the court on the motion for a preliminary injunction. A preliminary injunction enjoins something until the court has issued its judgment.

If no preliminary injunction is granted, the state will drag the case out as long as possible. As long as the case is in court, their infringements go on. If the preliminary injunction is granted, the state goes into panic mode. They attempt to get the injunction stayed, and if they can’t, then they move as fast as they can.

If the parties are unhappy with the court’s issuing (or not) of a TRO or preliminary injunction, they can appeal that to the circuit courts. There, the unhappy party will ask for a stay or the injunction, depending on their requirements.

In these cases, some had a preliminary injunction granted. The cases were appealed to the Seventh Circuit. A three judge merits panel heard the cases and issued their opinion.

“AR-15s, and the like, are most suited for the military, and therefore they are not ‘Arms’ within the scope of the Second Amendment.”

The plaintiffs then made a motion to have the cases heard en banc. The Seventh Circuit declined to do so.

One of the nasty things they did, besides deciding that the state can infringe on The People’s rights, was to say that this was just an interlocutory decision. That once the cases reached completion, the parties were welcome to appeal again.

The plaintiffs then made a Hail Mary attempt at getting the Supreme Court to hear the cases, before they were finalized.

It didn’t work.

So, the cases are back to the district courts. The good news is that Judge McGlynn has this case on the “fast track”. He did not pause the case while waiting for the Supreme Court to weigh in.

Would it have been nice for the Supreme Court to have heard these cases? Absolutely. The problem is that the cases wouldn’t have been resolved. They would have been sent down to the lower court, regardless, and they would have made their way back up to the Supreme Court. It would have put a 6 to 12 month delay in the process.

We are still waiting for the Fourth Circuit to issue their opinion on gun bans. The 2nd and 1st have cases moving forward as well.

The log jam is broken up, we’ll see some movement before the cases are once again waiting for the circuit courts to do their jobs.