Month: January 2020

Litigation Highlight: Holloway & As-Applied Challenges

A new Third Circuit case, Holloway v. Attorney General, sheds more light on how that circuit will consider as-applied challenges to the federal felon prohibitor—18 U.S.C. § 922(g)(1). Consistent with its fractured opinion in Binderup v. Attorney General, the Holloway court reaffirmed that seriousness, not violence, is the proper measure for whether an otherwise disqualifying conviction can constitutionally be applied to permanently extinguish Second Amendment rights. Courts in the Third Circuit naturally (as one of the few circuits to have vindicated an as-applied challenge) have an active docket of as-applied challenges and Holloway will serve as additional guidance for courts confronted with these challenges.

Warped Narratives: Distortion in the Framing of Gun Policy

Every year in America, gun violence claims more than 35,000 lives, with gun-related injuries accounting for more than twice that number. Despite this staggering problem, the federal government has taken very little action since in the mid-1990s. How do we account for this policy stalemate and, some would say, failure on the part of public officials? The typical explanations focus on deepening political polarization and the power of the gun lobby (and the National Rifle Association, especially). While these factors are clearly significant, another aspect of the gun policy debate, reflecting a more general dysfunction of policymaking, deserves our attention: the framing of the policy issue.

Equilibrium Adjustment and Second Amendment Doctrine

Almost a decade ago, Professor Orin Kerr wrote a brilliant article called “An Equilibrium-Adjustment Theory of the Fourth Amendment.”  In it, he posited a theory of the Fourth Amendment that describes judges applying Fourth Amendment doctrine so as to maintain some equilibrium between police power and personal liberty.   As he writes:

When changing technology or social practice makes evidence substantially harder for the government to obtain, the Supreme Court generally adopts lower Fourth Amendment protections for these new circumstances to help restore the status quo ante level of government power. On the other hand, when changing technology or social practice makes evidence substantially easier for the government to obtain, the Supreme Court often embraces higher protections to help restore the prior level of privacy protection.

SCOTUS Gun Watch – Week of 1/27/20

The Supreme Court has been quiet as we await NYSRPA. No action on the cases it heard last Friday at conference.

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 Cert Denied
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 distributed

24-Jan-20 conf. (relisted for 3rd conference)

Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) Cert Denied
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines distributed

10-Jan-20 conf.

Malpasso v. Pallozzi 4th Cir. 26-Sep-19 MD “may issue” public carry regime distributed

24-Jan-20 conf.

Pennsylvania v. Hicks Penn. 27-Sep-19 How a firearm can factor into reasonable suspicion under the Fourth Amendment Cert Denied
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents to be conf.


Matsura v. United States 9th Cir. 25-Oct-19 Unlawful possession of a firearm by a prohibited person distributed for

21-Feb-20 conf.

Baker v. City of Trenton, MI 6th Cir. 26-Nov-19 Reasonableness of warrantless search in light of the Second Amendment distributed for

21-Feb-20 conf.

Wilson v. Cook County, IL 7th Circ. 27-Nov-19 Assault weapons and high-capacity magazine ban resp. due 3-Feb-20
Beers v. Barr 3rd Cir. 9-Jan-20 Unlawful possession of a firearm by a prohibited person (involuntarily committed) resp. due 10-Feb-20

The First Amendment and Online Gun-Related Content

The First Amendment to the U.S. Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Following the 2011 attempted assassination of Congresswoman Gabrielle Giffords, there was much talk of numbers. The shooter used a Glock 23 handgun to fire off 33 rounds in 15 to 20 seconds, before pausing to reload. The public and legislative focus of some post-shooting discussions shifted to banning magazines that could hold large amounts of ammunition. Some gun owners responded to this talk by posting YouTube videos of themselves firing the same number of rounds in the same timeframe as the Giffords shooting, using smaller-capacity magazines. Their point was that banning large magazines wouldn’t have the desired impact of completely preventing future shooting attacks. Even before any gun control legislation might have been passed, it was being undercut by gun owners exercising what they view as their First Amendment right to free speech.

Cert Petition Highlight: Beers v. Barr & Prohibited Persons

In his telling, Bradley Beers was having a really bad day in 2005 when, as a 19-year-old college student, he returned home “deeply overwhelmed and stressed” about school. He threatened to take his life, so his mother took him to a local hospital for mental health treatment. The hospital committed him on an involuntary basis. Beers is now in his 30s and has not needed mental health treatment since this incident, but because of 18 U.S.C. § 922(g)(4) he is barred from ever again possessing firearms. He lost a Second Amendment challenge to that law in the Third Circuit and is now, with a team of prominent lawyers, seeking Supreme Court review.

Teaching the Second Amendment at Duke Law

This semester, I’m co-teaching with Joseph Blocher a seminar called Second Amendment: History, Theory, and Practice. A copy of our syllabus is available here. We just started the course yesterday and the discussion was deep, lively, and wide-ranging. I expect each week the fantastic students will bring this same level of insight and engagement to our conversations together.

I also wanted to use the opportunity of a new semester to re-up an earlier blog feature we did on Teaching Firearms Law. It includes the perspectives of scholars approaching the issue from different angles; each post explains how they teach the topic and what issues and themes they highlight. Check it out!

Mini-Symposium: Teaching Firearms Law

SCOTUS Gun Watch – Week of 1/13/20

The new year at the Supreme Court started the same as the last one ended: silence and anticipation. The new orders released this morning held no signs of action on NYSRPA and news that the Court did not act on the cert petitions in Guedes, which challenges the Trump Administration’s ban on bump stocks, or Worman, which challenges Massachusetts laws banning assault weapons and large-capacity magazines. It had just considered those cases  for the first time at its conference last Friday.

Since it granted cert in NYSRPA, the Supreme Court has consistently held gun cases, at least those raising Second Amendment challenges. Notably, however, it denied cert in Medina, challenging the federal firearm prohibitor as applied to a man with an old, non-violent felony conviction. And now it has decided to hold (or at least not deny at the first chance), Guedes though it raises no Second Amendment challenge. Perhaps it wants to explore the administrative law questions at issue there—or maybe a denial will come soon.

This week also saw one new relevant cert petition filed—Beers v. Barr—raising an as-applied challenge to the federal law barring firearm possession for anyone who has been involuntarily committed to a mental institution. Powerhouse big law firm Sidley Austin, along with Sarah O’Rourke Schrup from the Northwestern Supreme Court practicum, represent the petitioner in the case. Given the Court’s treatment of Medina’s as-applied challenge, it may have less appetite for person-based challenges, but we will have to wait and see.