The Second Amendment Foundation and the Firearms Policy Coalition have brought their fight directly to the U.S. Supreme Court in the case known as Gray v. Jennings, which arises from Delaware’s “assault weapon” and magazine ban case.
Seeking a writ of certiorari challenges both the substance of gun control law as well as a procedural aspect that could affect how these cases are handled nationwide. At hand specifically are implications for preliminary injunctions in anti-gun cases, which are crucial in maintaining the status quo from government enforcement of new laws while legal challenges take place.
Courts typically evaluate four factors considered when determining if a preliminary injunction is appropriate:
- The plaintiff is likely to win the case on the merits
- The plaintiff will suffer irreparable harm if the injunction is not granted
- The balancing of the interests and equities weigh in favor of granting an injunction
- The public interest will be advanced if the injunction is granted
Traditionally, once a plaintiff shows they are likely to succeed on the merits of their Second Amendment claim, courts have generally issued injunctions, according to Second Amendment and Constitutional scholar, Mark Smith of Four Boxes Diner:
Historically, when you are dealing with a claim involving a fundamental Constitutional right, such as the First Amendment’s right to free speech, or in most courts in America, the right to keep and bear arms; once a plaintiff establishes that he or she is likely to prevail on the merits of their Second Amendment argument, and that it is likely the case at the end of the lawsuit that the government gun control will be found unconstitutional and unenforceable, that is all they have to establish to get the injunction granted and the government shut down.
However, the Third Circuit Court of Appeals, in a departure from this norm, ruled that even if a plaintiff demonstrates likely success, they must still prove irreparable harm, balance of equities in their favor, and public interest, essentially treating Second Amendment rights as less than other Constitutional rights.
The Third Circuit decision created a split among federal circuits, with courts like the Seventh and Ninth Circuits generally ruling in favor of the plaintiff for Second Amendment cases. When there is a split in the appeals courts, the Supreme Court is more likely to intervene, generally speaking.
If the Supreme Court takes this petition, and rules in favor of the petitioners (SAF and FPC), it could set a precedent for how Second Amendment cases are processed, ensuring they receive equal procedural consideration as other Constitutional rights and shift favor to gun rights advocates.
