Month: April 2020

The Narrowness of the Supreme Court’s Decision in NYSRPA

New York State Rifle & Pistol Association Inc. v. City of New York, the first Second Amendment case to receive a Supreme Court hearing in a decade, was supposed to be the Second Amendment decision of this generation.

In the briefing in that case (of which I participated as amicus on behalf of neither party) all the hopes and fears of ten years of waiting appear on full display. What methodological tools should courts use to decide a Second Amendment case? Should they use the two-part framework adopted by all the circuits, with historical/categorical reasoning in step one, and tailoring through strict or intermediate scrutiny in step two? Or should they abandon this framework as illegitimate “balancing” and apply something perhaps more originalist: a test focused solely on the text, history and tradition of the Second Amendment? Is the Second Amendment confined to the home – as some readings of District of Columbia v. Heller would suggest – or does the right extend to bearing firearms for personal protection outside of the home as well?

McGinnis and the Dubitante Opinion

Last week Jake highlighted this Fifth Circuit opinion, United States v. McGinnis, in which Eric McGinnis raised a Second Amendment defense to his conviction under 18 U.S.C. § 922(g)(8) for possession of a firearm while subject to a domestic violence protective order.  Judge Stuart Kyle Duncan applied the two-part framework for Second Amendment challenges that has been adopted by nearly all circuits (including the Fifth Circuit) and upheld McGinnis’s conviction.

SCOTUS Gun Watch – Week of 4/27/20

The big news this week is that we have the Supreme Court’s opinion in NYSRPA. Check out our quick reactions on the decision and stay tuned for more analysis. In the meantime, the cases the Supreme Court was holding for NYSRPA have now all been distributed for this Friday’s conference. We may know by next week this time what the next major Second Amendment issue before the Court will be. (Mance, the oldest case sitting around, gets a new hearing just over one year since its last.)

Quick Reactions to the NYSRPA Opinion

This morning, the Supreme Court handed down its decision in New York State Rifle & Pistol Association v. City of New York. The case concerned a New York City rule that forbid individuals with a premises license from transporting their firearms to shooting ranges and second homes outside the City. The City repealed the rule after the Supreme Court granted review, and the state also passed a law preempting the prior rule. Those actions, a majority of the Court said today, made the case moot. (We’ve covered the case extensively on the blog – see here, here, here, here, here, here, here, here, and here.)

In a per curiam opinion, the Court vacated the decision below and remanded to the Second Circuit, noting that the circuit or district court may consider whether the challengers can add a claim for damages arising from the old rule or assert claims against the new rule. Justice Kavanaugh concurred with the majority, but also wrote separately to state that he shared with the dissent “concern that some federal and state courts may not be properly applying Heller and McDonald.” He added that, “[t]he Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.” In dissent, Justice Alito, joined by Justices Thomas (in large part) and Gorsuch, concluded that the case was not moot and that the rule violated the Second Amendment. We’ll have more analysis on the opinions in the coming weeks, but here are four initial takeaways:

(1) NYSRPA is not the next big Second Amendment case. As we expected after the developments last summer, a majority of the Court found the case moot. That holding, not the Second Amendment, was the dissent’s primary focus as well. The next big Second Amendment case may be coming, but NYSRPA definitely isn’t it.

(2) Even the dissenting justices viewed the Second Amendment issues narrowly. This was not—as the challengers and some amici tried to cast it—a broad case about the right to “bear” arms in public, but one about the rights incidental to “keep” them. As Justice Alito said in dissent, “[w]e deal here with the same core Second Amendment right [as in Heller], the right to keep a handgun in the home for self-defense.” (Emphasis added). The right the challengers were claiming was not a right to bear arms outside the home for self-defense, but “a necessary concomitant” of the keep-right, which was “the right to take a gun outside the home for certain purposes.”

(3) At least four justices are dissatisfied with some lower courts’ implementation of Heller. The dissenters bemoaned the lower courts’ use of heightened scrutiny in this case and suggested that such lax review infected more than just this one instance.

(4) The big question is what’s next. It seems clear that there are four votes for another cert grant, which theoretically could come very soon. We’ve been keeping an eye on pending petitions here: SCOTUS Gun Watch. Assault weapons prohibitions, public carry licenses, and interstate sales are among the possible topics for imminent Supreme Court review.

We’ll have more reactions and analysis going forward, but for now the wait continues for another major Second Amendment case.

Litigation Highlight – U.S. v. McGinnis

Earlier this week, in United States v. McGinnis, a Fifth Circuit panel upheld 18 U.S.C. § 922(g)(8) against a Second Amendment challenge. That provision prohibits a person subject to certain types of restraining orders from possessing guns or ammunition while the order is in effect. With this decision, the Fifth joins a chorus of other courts brushing aside facial challenges to the federal prohibitors.

Analyzing Ramos Through a Second Amendment Lens

In a fractured decision on Monday in Ramos v. Louisiana, the Supreme Court held that (1) the Sixth Amendment requires unanimous jury verdicts, and (2) that standard applies equally to the states. Reaching this ruling required the Court to discard a 1972 case, Apodaca v. Oregon, in which another fractured Court had concluded that states could diverge from the unanimity requirement. Justice Gorsuch wrote the majority opinion in Ramos, and he was joined in at least part of that opinion by four other justices—Justices Ginsburg, Breyer, Sotomayor, and Kavanaugh. Justice Kavanaugh also wrote separately to expand on his views about stare decisis. Justice Thomas agreed with the result only. Justice Alito dissented, and he was joined by the Chief Justice and Justice Kagan.

In my view, there are some interesting parts of Ramos that both draw from and can inform Second Amendment jurisprudence. Here’s three observations.

SCOTUS Gun Watch – Week of 4/20/20

We continue to have quiet on the Court’s gun docket, but it did issue three other opinions this week and announced that it may issue more on Thursday, so the Court’s active.

Today the Court also asked for a response in Rodriguez v. San Jose, which challenges a warrantless search/seizure of firearms. “A Supreme Court ‘call for response’ signals that someone at the high court is interested in a case, and Bloomberg Law research shows that it slightly increases the likelihood that the case will get granted.” Although the odds of a cert grant are always low, this research showed that cert is 5 times more likely to be granted after a call for response. We’ll be watching that one, which has been distributed for the April 24 conference, but will likely be held for the response due next month.

Covid Gun Litigation Roundup

There’s been a lot litigation over emergency orders and gun rights in the weeks since we’ve last tackled the issues on this blog. A lot of that litigation dropped off as states that faced the initial wave of lawsuits, like Pennsylvania and New Jersey, modified their orders without any court direction. In fact, Pennsylvania changed its law after prevailing in the state Supreme Court. The new round of lawsuits seem to be grouped into a few categories: (1) gun store closures, and (2) permitting & licensing delays. Below, I look at some exemplars in each category and highlight the open cases. (Many thanks to @2Aupdates for the useful resource Gun Case Tracker that allows following these cases in real time.)


The Covid-19 pandemic is altering the legal landscape. Emergency orders in many states are facing mounting pressure from civil libertarians and interested litigants. One challenge went all the way to the Supreme Court, but was defused before the justices had to weigh in. There’s no doubt that the Supreme Court’s operations are affected by the virus; it’s already extended briefing deadlines and announced plans to hold arguments telephonically. I wonder if the Court’s jurisprudence might be affected too. Will or should the Court take into account what’s been happening across the country as it decides important constitutional questions in the cases already argued this Term? What affect, if any, might Covid play in the Court’s consideration of New York State Rifle & Pistol Association?