January, 2020 | Second Thoughts

Litigation Highlight: Holloway & As-Applied Challenges

By Jake Charles on Friday, January 31, 2020

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.

Scholarship Second Amendment

Warped Narratives: Distortion in the Framing of Gun Policy

By Melissa K. Merry on Wednesday, January 29, 2020

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.

Scholarship Second Amendment

Equilibrium Adjustment and Second Amendment Doctrine

By Darrell Miller on Tuesday, January 28, 2020

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.

Second Amendment Supreme Court

SCOTUS Gun Watch – Week of 1/27/20

By Jake Charles on Monday, January 27, 2020

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

Scholarship Second Amendment

Scholarship Highlight: Recent Student Work on Firearms Law

By Jake Charles on Friday, January 24, 2020

A few new pieces of student scholarship on firearms law and the Second Amendment were recently uploaded to Westlaw. As these articles show, there are lots of interesting open issues in this area of law that ought to continue drawing interest among legal academics.

Scholarship

The First Amendment and Online Gun-Related Content

By Connie Hassett-Walker on Wednesday, January 22, 2020

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.

Second Amendment Supreme Court

SCOTUS Gun Watch – Week of 1/20/20

By Jake Charles on Tuesday, January 21, 2020

Due to the MLK holiday, the Court’s order list this week came out today. It was another relatively quiet week—no new cert petitions and no big action on the pending ones. We’re still suspecting that NYSRPA could come any day…or not for another five months.

Prohibited Persons Second Amendment Supreme Court

Cert Petition Highlight: Beers v. Barr & Prohibited Persons

By Jake Charles on Friday, January 17, 2020

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.

Scholarship Second Amendment

Teaching the Second Amendment at Duke Law

By Jake Charles on Wednesday, January 15, 2020

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

George Mocsary (Wyoming), “Competition for the First Amendment—Teaching Firearms Law and the Second Amendment.”
Mary Anne Franks (Miami), “Feelings, Facts, and Firearms: Teaching the Second Amendment.”
Eric Ruben (SMU) & James B. Jacobs (NYU), “NYU Law Seminar: Regulation of Weaponry in a Democratic Society.”
David Kopel (Denver), “Some Topics and Learning Objectives for Second Amendment Courses.”
Joseph Blocher (Duke), “Unexpected Choices in Teaching Firearms Law.”

Second Amendment Supreme Court

SCOTUS Gun Watch – Week of 1/13/20

By Jake Charles on Monday, January 13, 2020

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.

Month: January 2020