On June 2, 2025, the Supreme Court denied certiorari in Snope v. Brown, No. 24-203, leaving in place the Fourth Circuit’s en banc ruling in Bianchi v. Brown, 111 F.4th 438 (4th Cir. 2024), which upheld Maryland’s ban on AR-15 semi-automatic rifles. On the same orders list, the Court also denied certiorari in Ocean State Tactical, LLC v. Rhode Island, No. 24-131, leaving intact the First Circuit’s decision in Ocean State Tactical, LLC v. Rhode Island, 95 F.4th 38 (1st Cir. 2024), which upheld Rhode Island’s large-capacity magazine ban. Both denials arrived after fifteen re-listings — fifteen consecutive conferences at which the Court declined to act. Three Justices would have granted cert in each case. But three votes is one short of the four required, and the Court declined.
The frustration here is real and I will not pretend otherwise. Maryland’s AR-15 ban and Rhode Island’s magazine ban are unconstitutional restrictions that law-abiding gun owners are living under today. Residents of those states cannot exercise their Second Amendment rights while the Court decides when it is ready to act. Every re-listing, every conference at which cert was denied, was another months-long delay for people who have a constitutional right to keep common arms.
What the Justices Actually Said
The cert denial in Snope came with significant written statements. Justice Kavanaugh wrote separately to explain why he did not vote to grant cert — and his statement is the most consequential 2A text the Court has produced since Bruen itself. Kavanaugh observed that Americans possess an estimated 20 to 30 million AR-15 rifles. He noted that AR-15s are legal in 41 of the 50 states. He stated that petitioners had a “strong argument” that AR-15s are in “common use” by law-abiding citizens and therefore protected under District of Columbia v. Heller, 554 U.S. 570 (2008). He acknowledged that it is “analytically difficult to distinguish the AR-15[] … from the hand-guns at issue in Heller.”
And then he wrote the sentence that matters most: “This Court should and presumably will address the AR–15 issue soon, in the next Term or two.”
Kavanaugh’s stated reason for not voting to grant now: he wants more circuit opinions to assist the Court’s decisionmaking, specifically from circuits that have not yet ruled on the question. That rationale is a percolation theory — allow the lower courts to develop the record further — rather than a substantive endorsement of bans.
Justice Thomas dissented, joined by Justices Alito and Gorsuch. Thomas did not accept the percolation rationale:
“I would not wait to decide whether the government can ban the most popular rifle in America. That question is of critical importance to tens of millions of law-abiding AR–15 owners throughout the country. We have avoided deciding it for a full decade.”
That is a pointed critique. The Court has had vehicles to take the AR-15 question for years. Fifteen re-listings of Snope alone illustrates the pattern: the Court keeps kicking the case, and law-abiding gun owners keep living under unconstitutional bans while it waits. Thomas, Alito, and Gorsuch are correct that the delay is itself a harm.
The Fourth Circuit’s Flawed Reasoning
The Fourth Circuit en banc majority in Bianchi v. Brown reached its conclusion through a methodology Bruen expressly prohibits. A 10-5 majority held that AR-15s are “military-style weapons designed for sustained combat operations” and therefore fall outside the Second Amendment’s protection. This is interest-balancing with a historical veneer. The majority essentially asked whether the weapon is dangerous rather than whether it is in “common use” among law-abiding citizens — the standard Heller established and Bruen reaffirmed.
The common-use analysis leads to only one defensible answer. Twenty to thirty million AR-15s in circulation, legal in 41 states, used daily for hunting, home defense, competition shooting, and recreation — that is the very definition of a weapon in common use by law-abiding citizens. The Fourth Circuit majority’s alternative framework is an outcome-driven workaround that the Supreme Court will ultimately have to correct.
What Comes Next
Kavanaugh’s “next Term or two” timeline maps directly onto what is already pending. Several AR-15 and magazine-ban petitions are ripening: Barnett v. Raoul (Illinois), from the Seventh Circuit; Duncan v. Bonta (California magazines), from the Ninth Circuit; Gator’s Custom Guns v. Washington (Washington magazines). The DOJ has begun filing amicus briefs in these cases supporting challengers. When the right vehicle arrives, Kavanaugh has already signaled how he will vote on the cert question — and Thomas, Alito, and Gorsuch were ready to grant today.
The math is straightforward: three committed votes, Kavanaugh promising a grant in the near future, and Barrett’s record suggesting she will apply Bruen’s methodology faithfully. The Court that decided Bruen 6-3 has not changed its composition. It has only deferred the question, not resolved it in favor of the states.
Here is my bottom line on June 2, 2025: the cert denials in Snope and Ocean State Tactical are disappointing but not decisive. Kavanaugh’s statement is the most important Second Amendment language the Court has produced since Bruen was handed down. He acknowledged the constitutional strength of the challengers’ position, acknowledged the common-use status of AR-15s, and announced that a grant is coming. Thomas, Alito, and Gorsuch would have acted today. The Court’s composition has not changed. The next vehicle that creates the right circuit conflict for Kavanaugh’s percolation theory may force the grant well before “two Terms.” This fight is not over — it is setting up for the most important Second Amendment ruling since Heller itself.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.