Month: November 2019

New NICS Case: Snyder v. United States, Part II

A previous post explained how Steven Leroy Snyder failed his firearm purchase background checks on three occasions, but he passed the same background check when he renewed his concealed carry permit around the same time. He pursued both administrative remedies with the FBI to challenge the gun purchase denials and correct whatever inaccurate information was in the FBI’s databases regarding him. Frustrated by the lack of progress on this front, Snyder sought relief in federal court.  Snyder brought his lawsuit under 18 U.S.C. § 925A, which provides that an otherwise lawful purchaser denied a firearm due to an error in the background check system “may bring an action against the State or political subdivision responsible for providing the erroneous information, or responsible for denying the transfer, or against the United States, as the case may be, for an order directing that the erroneous information be corrected or that the transfer be approved, as the case may be.”  This avenue for judicial redress runs as another parallel track to the VAF process and the administrative procedure for challenging a denial, and Snyder availed himself of all three.

New NICS Case: Snyder v. United States, Part I

A recent federal district court decision from Washington State, Snyder v. United States, highlights the complex interplay of gun rights and the background check bureaucracy.  The October 30 decision brings together several areas of Administrative Law – judicial recourse (available relief) for adverse agency actions, cooperation and split responsibility between state and federal agencies, administrative reconsideration procedures, statutory default provisions for agency delays, and how agencies obtain information and correct mistaken information. In the background, of course, is the Second Amendment – the complaint does not include a Second Amendment claim, but the court mentions it in passing twice in the opinion.  The court’s ruling is on cross motions for summary judgment, deciding in favor of the government, and against the would-be gun purchaser.

SCOTUS Gun Watch, Episode 6

We’re just one week out from oral arguments in NYSRPA! And, to keep the drama high, briefing just concluded for good this past week. The City and the petitioners filed their responses to the SG’s letter brief on mootness. Next week, in addition to the normal SCOTUS Gun Watch, we’ll be doing some coverage of the arguments on Monday and throughout the week. We’ll also be joined by Nina Totenberg on Thursday, December 12th in Washington, D.C. for a discussion about the Court’s arguments and some help reading the tea leaves. (Sign up here!)

There were no new firearms law cert petitions filed this week, but some of the briefing has concluded in pending cases, teeing them up for conference scheduling. The biggest news out of today’s conference is the Supreme Court’s denial of the petition in Daniel v. Armslist, which sought to impose liability on the gun broker website for facilitating sale to a prohibited person.

The Anti-Carolene Court and Gun Politics

Nicholas Stephanopoulos has recently posted an article describing how the Roberts Court is fast becoming the “Anti-Carolene Court.”   The 1938 case United States v. Carolene Products Co. is famous, of course, for its footnote four, where Justice Stone articulates a theory of judicial review keyed to the need for judicial officers to intervene when there’s a failure of the political process.  The justices must act when groups – typically “discrete and insular” minorities  –  are  otherwise unable to assemble democratic coalitions to advance their political goals.  They must also act where there’s a risk of partisan hijacking of the political process itself to effect partisan entrenchment.  According to Stephanopoulos, the Roberts Court in recent years has “[f]lipped Carolene Products on its head” intervening in political disputes when Carolene Products would counsel deference, deferring when it would demand action, and all in a way that, consciously or unconsciously, aligns with the partisan priorities of conservative elites.

SCOTUSBlog Symposium: Disrupting the consensus on Second Amendment doctrine would be a mistake

[This post is part of a symposium on New York State Rifle & Pistol Association v. City of New York, hosted on SCOTUSblog and is cross-posted there.]

Joseph Blocher is Lanty L. Smith ’67 Professor of Law at Duke Law School, where he co-directs the Center for Firearms Law. Eric Ruben is Assistant Professor of Law at SMU Dedman School of Law and a Brennan Center Fellow. Along with Darrell A.H. Miller of Duke Law School, they filed an amicus brief in support of neither side in New York State Rifle & Pistol Association v. City of New York.

In one sense, the stakes in New York State Rifle & Pistol Association v. City of New York couldn’t be lower: The challenged regulation, a one-of-a-kind New York City restriction on transporting licensed handguns outside city limits, has already been repealed, arguably rendering the case moot. But when it comes to Second Amendment doctrine and methodology, the stakes are higher than they’ve been in a decade. If the petitioners have their way, the Supreme Court could reject the mainstream approach for deciding Second Amendment questions in favor of a more radical test focused solely on “text, history, and tradition” and without consideration of contemporary realities of guns and gun violence. That would be a mistake.

Litigation Highlight: State of Washington v. United States Department of State

This case traces its beginnings to a nonprofit by the name of Defense Distributed. Defense Distributed’s avowed purpose is to facilitate “global access to, and the collaborative production of, information and knowledge related to the three-dimensional (3D) printing of arms.” To that end, in 2013 the organization published computer aided design (CAD) data files that would enable users to print various guns using a 3D printer. The Department of State promptly advised Defense Distributed to take down the files, and later found that some (though not all) of the CAD files were subject to and in violation of the Arms Export Control Act’s (AECA’s) implementing regulations, the International Traffic in Arms Regulations. The AECA authorizes the President to control the importation and exportation of defense articles in “furtherance of world peace and the security of foreign policy of the United States.”

SCOTUS Gun Watch, Episode 5

Unlike last week, with the big news about the Court’s decision not to hear the Remington case arising from the shooting at Sandy Hook Elementary, this week was quieter. But we did get an unusual letter from the Solicitor General about NYSRPA. In that letter, filed on Friday afternoon, the SG informed the Court that, although it had previously taken no position on the mootness question, it had since determined that “[i]n the United States’ view, respondents have not established that this case is moot.” It offered to file a brief to that effect, which the Supreme Court accepted—asking for a letter brief in the next few hours. The SG obliged, arguing that the potential for prospective relief kept the case alive, but rejecting most of petitioners’ broader alternative theories that the case was not moot. [Update: I originally said the SG gave two reasons the case was not moot, but on closer read the SG really appears to argue just one core avenue, though he hedged a bit on other reasons the petitioners gave; ultimately, he rejected most of those.] The Court gave each of the parties opportunity to respond by Wednesday, November 20th at 2pm (just in time for the Thanksgiving holiday).

Here’s where the rest of the cases, mostly unchanged since last week, stand:

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Mance v. Barr  5th Cir. 19-Nov-18 Federal ban on out-of-state handgun purchases distributed

12-Apr-19 conf.

Rogers v. Grewal  3rd Cir. 20-Dec-18 NJ “may issue” public carry regime distributed

23-May-19 conf.

Pena v. Horan  9th Cir. 28-Dec-18 California’s Unsafe Handgun Act (microstamping, etc.) distributed

12-Apr-19 conf.

Gould v. Lipson  1st Cir. 1-Apr-19 MA “may issue” public carry regime (as implemented locally) distributed

6-June-19 conf.

Cheeseman v. Polillo N.J. 28-June-19 NJ “may issue” public carry regime distributed

18-Oct-19 conf.

Ciolek v. New Jersey N.J. 18-July-19 NJ “may issue” public carry regime distributed

1-Oct-19 conf.

Daniel v. Armslist Wisc. 29-July-19 Scope of immunity for gun-broker website under Communications Decency Act distributed for

22-Nov-19 conf.

Remington Arms v. Soto Conn. 1-Aug-19 Scope of  gunmaker immunity under the Protection for Lawful Commerce in Arms Act Cert Denied
Guedes v. ATF D.C. Cir. 29-Aug-19 Ban on bump stocks resp. due 4-Dec-19
Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) reply due @ 18-Nov-19
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines resp. due 9-Dec-19
Malpasso v. Hamilton 4th Cir. 26-Sep-19 MD “may issue” public carry regime resp. due 18-Dec-19
Pennsylvania v. Hicks Penn. 27-Sep-19 How a firearm can factor into reasonable suspicion under the Fourth Amendment reply due @ 14-Nov-19
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents resp. due 13-Jan-20
Matsura v. United States 9th Cir. 25-Oct-19 Unlawful possession of a firearm by a prohibited person resp. due 29-Nov-19


Unbannable Arms?

When it comes to the “Arms” protected by the Second Amendment, the conceptual space is typically divided into two categories. Some weapons, like those that are “dangerous and unusual,” can be banned without raising any constitutional problems. For those that are not dangerous and unusual, the government has to satisfy some requisite level of scrutiny. But—and I hate to do this again, having just made a conceptually similar argument about the Two Part test—there also seems to be a third category: Weapons that cannot be banned without categorically violating the Second Amendment.

Part Three of the Two Part Test

In the wake of Heller, state and federal courts have overwhelmingly applied what has come to be known as the “Two Part Test.” The first part is a threshold inquiry about whether the challenged regulation intersects with the Second Amendment at all. If the answer to that inquiry is yes, then courts move on to the second part: Typically some kind of means-end scrutiny, the stringency of which depends on how much the law burdens the “core” right of self-defense.

SCOTUS Gun Watch, Episode 4

The big news from this week is that the Supreme Court denied certiorari in the case arising from the Sandy Hook massacre—Remington v. Soto. As I’ve written about (here and here), the Court might have been concerned about vehicle issues with the petition. The petition raised a question about whether the federal law immunizing gun manufacturers in most situations, the Protection for Lawful Commerce in Arms Act, applied to these facts. Because the case came up from an interlocutory ruling, there was some question about the Supreme Court’s appellate jurisdiction. But, in any event, the case may now proceed through discovery and to trial. More surprising to me than the fact that the Court denied review was the fact that there was no noted dissent from the denial.

I’ve also added one more case to the chart: Pennsylvania v. Hicks. The petition was filed a little over a month ago, but I didn’t initially include it because firearms are only tangentially involved. But, because it raises a question about how the presence of firearms affects law enforcement’s ability to conduct investigatory stops, and with increasingly loosened restrictions on public carry, I thought it worth keeping an eye on.

We also have our first briefing deadline extended into the New Year, ensuring that 2020 will bring just as much debate over guns as 2019 did.