The Supreme Court Two First Amendment Firearm Cases Enter

The Supreme Court Justices announced on Friday that they would be issuing an opinion on free speech rights for the National Rifle Association (NRA), as well as whether the federal government has the right to prohibit bump stocks by classifying them as machineguns.

Normally, cases involving firearms fall under the Second Amendment — the right to bear arms. This time around, the First Amendment is at play. Prof. Eugene Volokh, a leading scholar on the First Amendment, is representing the NRA alongside a slew of attorneys who have handled other cases for the organization over the years.

The NRA alleges that the head of the New York State Department of Financial Services has been attempting to use “pressure tactics — including backchannel threats, ominous guidance letters, and selective enforcement of regulatory infractions — to induce banks and insurance companies to avoid doing business with” the NRA.

The justices are tasked with a critical decision that could reshape the outlook on the American constitution, deciding whether government authority figures can wield their power against private businesses that engage in business with individuals or other entities who speak out against the government.

Volokh and his colleagues addressed the matter in the filing, writing:

“The public importance of this case cannot be overstated. A regulatory regime—even a facially content-neutral one—that ‘inhibit[s] protected freedoms of expression and association’ violated the First Amendment.”

They added, “An overt campaign by state officials to wield regulatory power against a disfavored civil rights organization—here the NRA— precisely because of its disfavored speech at least as clearly merits this Court’s attention and reversal.”

SCOTUS will also hear another firearms case soon that has nothing to do with the Second Amendment. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) issued a regulation that banned bump stocks following the Las Vegas shooting back in 2017.

The New Civil Liberties Alliance (NCLA) filed suit claiming the ATF regulation aims to redefine the term “machineguns” and has no authority to do such. Under federal law, the definition of a machinegun is “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.”

While a bump stock can be used to fire in rapid succession, every shot still requires another pill of the trigger. The standard machine gun does not; it discharges rapid fire with the trigger being held down without release.

Both cases are pending review and expected to be argued in Spring 2024, with decisions rendered midsummer. This should make for an interesting election season.