Below is my column in The Hill on the announcement from Justice Samuel Alito that he is sticking around. Even a cursory review of the docket explains why Alito is not eager to depart despite the wishful thinking of folks at National Public Radio.
Here is the column:
Justice Samuel Alito is not done yet.
A month after National Public Radio’s Nina Totenberg announced that Sam Alito was retiring (a story NPR later had to retract), the 76-year-old jurist told the Wall Street Journal in an interview, “Obviously, I’m here for another term.”
Looking at the docket for the coming term, it is easy to see why. Even after overturning Roe v. Wade and other historic opinions, Alito still has unfinished business. An example can be found in two cases involving bans on semiautomatic rifles like the AR-15 that are now awaiting argument in the October term.
Many of us have been frustrated by the Court’s failure to address these laws barring AR-15s and other weapons. Just last year, the Supreme Court declined review of such a Maryland law. Alito and Justices Clarence Thomas and Neil Gorsuch indicated that they wanted to hear the case, failing just one vote short of granting certiorari.
Notably, the required fourth vote could have come from Justice Brett Kavanaugh, who called the Fourth Circuit’s ruling in Snope v. Brown “questionable” and added that the Court “should and presumably will address the AR-15 issue soon, in the next Term or two.”
Now, it will.
Democrats are moving in various states to ban the nation’s most popular rifle (the AR-15) and its most popular handgun (the semiautomatic 9mm). Some of us view these laws as presumptively unconstitutional.
In 2008, the court declared in its opinion in Heller that gun ownership is an individual right. The court emphasized how these weapons were in common use and not the type of dangerous or unusual weapon that would fall outside of the Second Amendment. Handguns, the opinion reads, “are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”
In 2022, the Court held in the Bruen case that the government bears the burden of demonstrating that any restriction upon the right to keep and bear arms “is consistent with this Nation’s historical tradition of firearm regulation.”
The bans on Glock handguns and semiautomatic rifles are efforts to achieve indirectly what the Supreme Court barred directly. In Virginia, Gov. Abigail Spanberger (D) immediately moved against gun rights after her election. Ironically, her election not only spurred a massive surge in gun purchases, but she then supplied the lead line of briefs challenging the law. Spanberger admitted that the state law she signed would ban commonly used hunting guns.
In what is known as the court’s “clean-up conference,” the justices granted review in Illinois and Connecticut cases challenging bans on semiautomatic rifles.
In Viramontes v. Cook County, the Seventh Circuit relied on an earlier ruling that gun owners had failed to show “that the covered firearms materially differed from machine guns and military-grade weaponry, which the Supreme Court instructed can be banned under the Second Amendment.”
In Grant v. Higgins, the Second Circuit upheld a similar ban after agreeing with the state that the law imposes “a burden comparable to historical antecedents that regulated other unusually dangerous weapons unsuitable for and disproportionate to the objective of individual self-defense.”
Notably, in the Illinois case, Cook County argued that these are not just unusually dangerous weapons, but that the challengers cannot offer “even a single instance in which assault weapons were ever used in lawful self-defense.”
That is a highly dubious claim. Since 1990, there have been an estimated 32,091,000 Modern Sporting Rifles in circulation. These are semiautomatic models, which means they fire a single bullet and then automatically load another cartridge into the chamber. The AR-15 is the most popular model, and there are estimates that it has as many as 25 million owners.
The popularity of the AR-15 is due to the fact that it is modular, with some models allowing one to swap out barrels, bolts and high-capacity magazines, or add a variety of accessories. It is also not the most powerful gun; many guns have equal or greater calibers.
There is roughly the same number of Glock pistols in circulation. That means perhaps 40 million Americans currently possess weapons that Democrats are trying to ban as unusually dangerous and completely unprotected.
With the granting of these cases, Virginia’s ban on new sales of the AR-15 rifle and other guns will have to await the final decisions.
These gun bans are not the only cases involving politically popular, legally dubious legislation. The first case to be argued will be Suncor Energy v. Commissioners of Boulder County, a challenge to state laws imposing damages on fossil fuel companies for climate change.
With a docket like that, one can see why Alito is not going anywhere.
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
He had already hired his Clerk’s for next term. Why the drama of retirement?
Cook County argued that there is not “even a single instance in which assault weapons were ever used in lawful self-defense.”
Though irrelevant to the *right* to own a gun, that claim is patently false.
There are numerous such examples of an individual using an AR-15 in self-defense: Broken Arrow, Oklahoma in 2017, and perhaps the most famous example —
The Sutherland Springs, TX church shooting. That mass murder was stopped by Stephen Willeford, a private citizen who shot the murderer with an *AR-15*.
why are the REST of the Republicans SO DAM WEAK!
Grant v. Higgins: weapons “disproportionate to the objective of individual self-defense.”
Here we have the Court’s “reimagining” of 2A, where somewhere it finds the language:
“. . . the right of the people to keep and bear Arms, shall not be infringed” so long as the Arms are proportionate “to the objective of individual self-defense.”
Up next, a “reimagining” of 1A:
“Congress shall make no law [. . .] abridging the freedom of speech,” so long as that speech is proportionate to the defense of one’s opinions.
And who decides what is and is not proportionate (and “disproportionate”)? Bureaucrats who wish to seize guns and censor speech.
That is a typical fascist move: Leave the individual with the *possession* of a right — while the government strictly controls how an individual *uses* that right.
Typical fascist move? Sam you make me laugh, you should write comedy or be on the supreme court. Can’t wait for the next joke.
So machine guns, RPGs, tanks and nuclear bombs are to be allowed as personal possessions?
That’s what you’re arguing for by labelling the self-defense-proportionality-standard as fascist.
Whoops.
“machine guns, RPGs, tanks and nuclear bombs are to be allowed as personal possessions?”
Yes, that is precisely correct. The Second Amendment makes no qualification on the use of the arms that The People have an irrevocable right to “keep and bear”. For any use of those arms to be held illegal requires that it be reflected in Federal and State laws against physically aggressive actions and attacks that apply no matter what instrumentality was used in the attack. In fact, the Amendment was enacted in large part as a reaction to the Founders’ then recent experiences with oppressive governance from the British, and was intended, among other objectives, to prevent such oppression from becoming established by government here. The fact that fools like you hate everyone else nearly as much as you despise yourselves, and would deny everyone the right to defend individual Life and Liberty, has no legal or moral bearing on the matter.
Absolutely correct assessment….
Well, I am pleased that Justice Alito will continues to sit through another term and maybe even more after that. After all, NPR and Nina Totenberg need to have something to print and then retract, just to remind us that they are still there.
As far as I can tell, there are two main positions at play.
On one side, many gun advocates could accept a ban on AK-47-type rifles. Their real objection is that they deeply distrust Democrats, whom they believe ultimately want to ban all guns and see an AK-47 ban as just the first step.
On the other side, Democrats continue the push to ban AK-47s because it serves as a reliable “red meat” issue for their anti-gun voting bloc, which will support this matter irrespective of anything else..
As a result, both sides remain perennially at odds with each other.
Actually, there is a common sense argument to hold back the “massacering aggressor’s kill rate”. That gives more time for self-defense to kick in, lowering the body count of mass murder sprees.
Yes, constraining the kill rate of purchasable firearms is pro-self-defense.
” many gun advocates could accept a ban on AK-47-type rifles”
That would depend on who you define as a “gun advocate”. It is also totally irrelevant as a criteria for applying the 2nd Amendment.
Thank Goodness for Alito! America has been compromised at all levels of government. The enemy of our nation is within.
The Second Amendment is not limited to self-defense in abortive choice (not elective or Choice, Planned), but includes hunting, shooting, and other practices useful in training.
The “history and tradition” standard invoked by Alito opens the door to highly subjective and pre-determined outcomes.
Roberts used “birthplace created a subject to the King” law from the time of Shakespeare to justify a historically ignorant, indiscriminate interpretation of the 14th Amendment. Meanwhile he ignored:
• The standard way babies of immigrants became US Citizens throughout the 1800s was by Derivation, automatically on the same day a parent was Naturalized. That child proved their Citizenship by showing the parent’s Naturalization papers, not by showing a birth certificate. Nothing about this practice changed in 1868. This explains why as late as 1898 Wong Kim Ark was not considered a US Citizen by US Customs. 19th century history completely refutes the claim that the 14th Amendment was intending to change the timing and way immigrant babies became US Citizens.
• The source of the cited common law, England, phased out birthright citizenship in an orderly fashion starting in 1981 replacing it with Citizenship Inheritance
“History and tradition” simply means “I’ll write the opinion the way I want, choosing from history as I want”.
“highly subjective and pre-determined outcomes.” That’s exactly what it it intends, based on “history and tradition”. And that’s a problem? I know it’s early but…
You can cherry pick whatever you want from history — just look for what you want and you’ll find it there.
The “original intent” of a Constitutional Amendment is a more firm, objective standard. It has these 2 advantages:
• You can figure out what the Amendment meant at the time by studying behaviors that changed immediately after Ratification
• You can safely assume that meaning is very close to what the Ratifiers were voting “aye” for
The original intent deduced this way carried the legitimacy of Ratification. SCOTUS decisions based on “history and tradition” veer outside original intent. It signals to lower court Judges that they may also decide cases this way. That opens the door to “interpretive law-making” — things never passed by our elected representatives, but rather the policy preferences of activist plaintiffs.
It’s funny that leftwing Fascists ban AR-style weapons, then claim there are no instances of AR-style weapons being used in lawful self-defense. Everyone knows that ARs are used all the time in home defense, and sometimes in defense outside the home, in areas where the Fascists haven’t banned them. Tautological arguments like “ARs are illegal and ARs are never used lawfully for self-defense” aside, if these weapons were so dangerous and inherently evil, they would not be in the gun racks of police cruisers in cities like Chicago and states like Virginia.
Everyone knows that ARs are used all the time… Everyone? How did you come to that conclusion? Probably thru drug and alcohol abuse.
You would have to brandish an AR in front of a home invader to claim it as a self-defense incident. I haven’t read about ONE such incident ever. Have you?
Folks, when a commenter resorts to using generalizations: “everyone knows”, you know that he has no idea what he’s writing about.
The Dumbocrats want to increase the number of Justices to 13 (so long as only the next Dumbocrat President gets to nominate the new ones) because there are 13 federal courts of appeal. If they do that I say the Repubs should increase the number of Justices to 50 (so long as only the next Repub President gets to nominate the new ones) because there are 50 states. And the next Dumbocrat President after that will want to increase the number of Justices to 100 because there are 100 Senators, and the next. . . . .
You sound like a crazy liberal, or are you writing jokes for Bill maher?
Theocrats are gross.
But, but….. we have to pack the courts.
The court will be “packed” by Trump when retirements occur during the remainder of his term.
You don’t understand packing the court. It is to increase the number of justices by a great number and then appoint ones with the most radical views of your party. Only one party, the Democrats, want to do that.
Replacing one justice with another is not packing the court.
Hence the quotation marks…
You don’t understand packing the court as it is applied in news nowadays. Its a deliberate attempt to insert politically baiesed judges with a liberal bent, initiated by liberals, not conservatives, to carry their political agenda by diluting the effect on conservative judges. Replacing is not packing. But you know that, you’re just being a dickhead.
Only democrats. Not true. Trump has stated it several times, here’s one: https://www.yahoo.com/news/articles/trumps-supreme-court-picks-ruled-110547529.html
Oppps, on May 11, 2026.