The SCOTUS Term to Come

While the new Supreme Court term does not promise anything so life-changing as overturning Roe v. Wade, several cases offer a potential change to First Amendment rights, a resolution of questions over trans rights, and a Second Amendment case that can affect a large number of “ghost gun” owners.

The question of the First Amendment and porn is represented by Free Speech Coalition, Inc. v. Paxton, in which the court will consider a Texas law requiring porn websites to verify a user’s age. That 2023 Texas law requires viewers pass some sort of test showing they are over 18, and also requires porn websites to display health warnings about the psychological risks of adult material (which the porn industry disputes) to include “addiction, impaired development, and increased demand for prostitution and child exploitation.” Arkansas, Louisiana, Mississippi, Montana, North Carolina, Utah, and Virginia all have similar age-verification laws.

The key point of contention will be whether or not the process “unduly burdens” legitimate adult porn users in pursuit of their First Amendment rights, or whether the state has a “compelling interest” in protecting children such as to require the age-verification test. The Free Speech Coalition, representing the adult film industry, argues, “Of central relevance here, it requires every user, including adults, to submit personally identifying information to access sensitive, intimate content over a medium—the Internet—that poses unique security and privacy concerns.”

At first glance it appears to have all the impact of, say, clicking through a simple age verification box, but in fact the decision could have sweeping implications for First Amendment protections, looking into the broader question of whether the speech rights of adults outweigh potential harms to minors.

First Amendment protections have often cut across the liberal/conservative divide, and the court has generally ruled in favor of protecting children, and so is likely to uphold the Texas age verification test. Oral arguments have yet to be scheduled.

The court will also look at trans rights. In U.S. v. Skrmetti, the Supreme Court will consider a Tennessee law banning gender transition treatments for minors. The law prohibits health care providers from giving hormones or puberty blockers to “enable a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex.” Two transgender boys and one transgender girl are challenging the law, alongside the Biden-Harris Justice Department and a doctor, claiming it violates the 14th Amendment’s equal protection clause.

More than 20 states (affecting an estimated 100,000 trans adolescents and teenagers) passed laws halting minors’ access to puberty blockers, hormone therapy, or gender-affirming surgery, meaning the justices will in essence decide the constitutionality of gender-affirming care bans for minors using the Tennessee law as an example. The question of “equal protection” arises from the fact that the Tennessee law prohibits the hormones only for one purpose, gender transition, while allowing their use in other cases unrelated to transition. That suggests the law unconstitutionally discriminates on the basis of sex.

The Biden-Harris administration challenged Tennessee’s ban on gender-affirming care. “The laws are inflicting profound harms on transgender adolescents and their families by denying medical treatments that the affected adolescents, their parents, their doctors, and medical experts have all concluded are appropriate and necessary to treat a serious medical condition,” the Justice Department wrote in court filings.

Greg Germain, a law professor at Syracuse University, told Newsweek the case will be an interesting test for the Supreme Court. “Allowing the use of drugs for certain conditions and not others does not strike me as violating equal protection. But it’s the ultimate political hot potato these days,” he said. Oral arguments have yet to be scheduled.

Second Amendment

Garland v. VanDerStok asks whether a kit for assembling a gun, or the sum of a set of parts capable of making a gun, is in fact a gun and thus subject to regulation, needing a serial number, its owner requiring a license and background check, etc. The court recently heard oral arguments in the case, a challenge to a regulation by the Biden-Harris Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) that places new requirements on previously untraceable “ghost guns” assembled by the buyer.

The untraceable gun parts are typically purchased online; sales surged until an April 2022 ATF rule (part of the Biden-Harris administration’s crackdown on ghost guns) amended the definition of a firearm to include self-assembly kits and collections of parts. It also stipulated partially assembled weapons that can easily be converted to full firearms must be registered as guns. Some of the “kits” are largely-assembled weapons, needing only a few holes drilled and lower receivers fitted to slides to function. A quick look online reveals a vibrant market for the goods. Some claim the full kits can be made into a functioning weapon by anyone who can handle an IKEA build; others say it is a very difficult job. If upheld by the court, all of these devices would need to be registered, doing away with ghost guns.

The justices seem inclined to OK the Biden-Harris ghost gun rule via some creative examples.

“Is it the case that components that can easily be converted into something constitute that thing before they are converted as a matter of ordinary usage?” Associate Justice Samuel Alito asked Solicitor General Elizabeth Prelogar, who argued in favor of preserving the rule. “I’m going to show you: Here’s a blank pad, and here’s a pen,” Alito said. “Is this a grocery list?”

“There are a lot of things you could use those products for to create something other than a grocery list,” Prelogar replied, prompting Alito to try another example.

“If I show you, I put out on a counter some eggs, some chopped up ham, some chopped up pepper and onions, is that a western omelet?” Alito asked.

Prelogar again said no, because even that collection of ingredients could be used to make something else, while the parts kits at issue in the case “have no other conceivable use” beyond making a firearm.

Associate Justice Amy Coney Barrett asked, “Would your answer change if you ordered it from Hello Fresh, and you got a kit, and it was like turkey chili, but all of the ingredients are in the kit?”

“We would recognize that for what it is,” Prelogar responded. “It doesn’t stretch plain English to say I bought omelets at the store, if you bought all of the ingredients that were intended and designed to make them.” Prelogar did say the Hello Fresh example was a better comparison, since the kit is intended to be made into chili and nothing else.

Barrett’s rebuttal to Alito, says POLITICO, was “notable because she was one of two conservative justices who joined with the three liberal justices last year to allow the ghost gun rule to take effect despite lower-court rulings that put it on hold on the grounds that it exceeded the authority Congress granted to federal officials in the Gun Control Act of 1968.”

Chief Justice John Roberts joined in trying to understand.

“Just what is the purpose of selling a receiver without the holes drilled in it?” the chief justice asked.

“Well, just like some individuals enjoy, like, working on their car every weekend, some individuals want to construct their own firearm,” the attorney for the ghost gun industry responded.

“Well, I mean, drilling a hole or two, I would think, doesn’t give the same sort of reward that you get from working on your car on the weekends,” the chief retorted.

Also weighing on the justices’ minds were the number of crimes committed with ghost guns, with the ATF reporting a 1000 percent increase between 2017 and 2021. “By the end of arguments, you could practically hear the 6–3 majority [in favor of registering ghost guns] clicking into place,” wrote Slate.