In a video posted by Washington Gun Law, attorney William Kirk expressed deep concern over the U.S. Supreme Court’s latest orders list. The high court declined to hear two major cases, L.M. v. Town of Middleborough and Apache Stronghold v. United States, both of which could have had massive implications for Americans’ First Amendment and religious liberty rights. Though neither case directly involved the Second Amendment, Kirk argued their outcomes signal how the Court might treat upcoming firearm-related cases. And to his viewers, that was anything but comforting.
The Middleborough T-Shirt Controversy
One of the two cases that Kirk focused on was L.M. v. Town of Middleborough, an appeal out of the First Circuit. In this case, a public school student wore a shirt reading “There are only two genders.” School officials banned the shirt, sparking a lawsuit from the student and their guardians, who claimed the ban violated the student’s First Amendment rights.
Justice Samuel Alito dissented from the Supreme Court’s refusal to hear the case, arguing it was an “issue of great importance for our nation’s youth.” According to Alito, the First Circuit’s ruling – that public schools are not bound by the same viewpoint-based censorship prohibitions that govern other public institutions – was a dangerous precedent. Only Justices Alito and Thomas objected to the denial.
Justice Alito’s Stark Warning
Kirk emphasized the gravity of Alito’s dissent. Alito warned that the ruling allows public schools to silence students based solely on vague concerns about the speech’s potential “offensive” nature. Kirk stressed that this goes beyond just one student’s T-shirt – it sets a broader tone for how speech, especially unpopular or politically incorrect viewpoints, may be handled going forward in public institutions.
This case underwent 11 conferences before the Supreme Court ultimately denied certiorari. Kirk pointed out that this delay gave many hope that the Court might take it up, only to see those hopes dashed in the final outcome.
Apache Stronghold and Sacred Land
The second case discussed by Kirk, Apache Stronghold v. United States, involved a deeply sacred site for the Western Apache people – Oak Flat, or Chí’chil Biłdagoteel. This land, used for religious ceremonies for centuries, is now slated to become a copper mine. A massive excavation project would blast tunnels, creating a crater nearly 1,000 feet deep and 2 miles wide.
The Apache Nation argued that this violated the Religious Freedom Restoration Act, but the Ninth Circuit ruled that it didn’t constitute a “substantial burden” on religious practice. Again, only Justices Gorsuch and Thomas dissented from the Supreme Court’s decision not to hear the case, after 14 conferences.
Kirk’s Bigger Concern
So why do these cases matter to gun owners and Second Amendment watchers? According to Kirk, the denial of cert in both L.M. and Apache Stronghold, after so many conferences, proves that simply being relisted multiple times is no guarantee that a case will be heard. This undermines optimism about key Second Amendment challenges like Snope v. Brown and Ocean State Tactical, LLC v. Rhode Island.
Kirk admitted he had previously believed that the longer a case was considered in conference, the better its chances. Now, he’s not so sure. “I may have been wrong about that,” he said. “These are two cases that were immensely important – and they were still denied.”
Mark Smith Reads Between the Lines
Mark W. Smith, a constitutional attorney and host of The Four Boxes Diner, echoed Kirk’s concerns but offered a different take. In his breakdown, Smith explained that the Supreme Court hasn’t just refused to hear Snope and Ocean State Tactical yet – they’ve also issued final denials in other cases with far fewer conferences.
For example, L.M., a relatively new case, was decided before the longer-pending Snope and Ocean State Tactical. Smith sees that as a subtle but hopeful sign.
Not Just a Queue, But a Strategy?
Smith argued that the Supreme Court isn’t moving through cases in chronological order. “If they were just going in order, then Snope and Ocean State would’ve been decided already,” he said. Instead, their extended wait suggests something else may be going on – perhaps a strategic debate inside the Court on how to handle Second Amendment cases going forward.
He pointed to the Court’s history with the Dobbs decision overturning Roe v. Wade. That case was relisted more than 20 times as internal negotiations played out. Smith believes Snope and Ocean State Tactical may now be entering a similar territory.
What Are These 2A Cases About?
In case you haven’t been following closely, Snope v. Brown challenges Maryland’s ban on AR-15s, while Ocean State Tactical v. Rhode Island involves magazine capacity limits. Both cases directly challenge state-level firearm restrictions, which many see as violating the Supreme Court’s Bruen precedent.
Gun rights advocates are hoping the Court will grant cert in Snope, which Smith says is the stronger of the two cases. He even argued it may be better for the Court to not take both, to avoid a “split-the-baby” scenario where the justices rule in favor of AR-15s but against standard magazines.
A Cautious Optimism
While both Kirk and Smith sounded alarms, Smith held onto a sliver of optimism. He noted that if the justices were merely preparing dissenting opinions for a denial of cert, they could have reused existing ones. Justices Thomas and Alito have written forceful dissents in 2A cases before – cutting and pasting wouldn’t take 14+ conferences. The delay, he argues, may indicate internal bargaining or even a full opinion in the works.
Kirk, however, was less optimistic, warning viewers not to expect the Court to swoop in and fix lower court resistance to gun rights overnight.
Why This Matters for Everyone
Even beyond the gun rights debate, both commentators made it clear that these recent denials touch fundamental rights. Free speech in public schools. Sacred religious sites. If the Court won’t defend rights in these contexts, what are the odds it will defend them when guns are involved?
That’s what makes these denials alarming. If the Supreme Court is unwilling to weigh in on basic constitutional questions, what confidence should Americans have in their rights being upheld?
This Is Bigger Than Guns
It’s honestly a little chilling. The fact that a kid can’t wear a T-shirt because it makes administrators “uncomfortable,” or that a centuries-old religious site can be turned into rubble, all without the Court lifting a finger? That’s not just about one person or one tribe. That’s about precedent. It’s about silence becoming approval.
And if the Court’s silence is deafening on these matters, it doesn’t exactly boost confidence that Second Amendment cases will be treated with urgency or care either.
We’re Not Out of the Woods
The bottom line, as both William Kirk and Mark Smith agree, is this: we’re not out of the woods. The Supreme Court might still surprise us with a cert grant in Snope, but if it doesn’t, don’t say we weren’t warned. The cases of L.M. and Apache Stronghold should serve as a wake-up call to anyone who thought the Court was always the last firewall of freedom.
Stay alert, stay educated, and above all, keep watching what’s happening behind those closed courtroom doors.
Growing up in the Pacific Northwest, John developed a love for the great outdoors early on. With years of experience as a wilderness guide, he’s navigated rugged terrains and unpredictable weather patterns. John is also an avid hunter and fisherman who believes in sustainable living. His focus on practical survival skills, from building shelters to purifying water, reflects his passion for preparedness. When he’s not out in the wild, you can find him sharing his knowledge through writing, hoping to inspire others to embrace self-reliance.
