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.
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!
- 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.”
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.
The Center is happy to announce our first Research Affiliate for 2020: Kathryn Albrecht. Kat is a JD/PhD (Sociology) student at Northwestern. We are extremely happy to have Kat as a Center Research Affiliate and look forward to sharing more of her work in this space. Below is her bio – and you can check out her website here.
Kat is a Law and Sciences Fellow in sociology and the Pritzker School of Law at Northwestern University. She is also a member of Luis Amaral’s Complex Systems Lab in the McCormick School of Engineering. Kat’s work sits at the intersection of computational social science and law, where she uses innovative computational techniques to study school gun violence, felony murder, Title IX policy, and racial disparity in arrest. Her work has been published in outlets like Nature Human Behavior, Law and Policy, and Studies in Law, Politics, and Society. Kat is very active in the computational social science community and has been a principal organizer of the Summer Institute in Computational Social Science Chicago in 2018, 2019, and upcoming 2020. She is currently working on her dissertation project that analyzes how legal processes and institutions reify categories of inequality.
Open any of the myriad of news articles discussing New York State Rifle & Pistol Association v. City of New York, and you are likely to find descriptions of the case as “[t]he first gun rights case at the U.S. Supreme Court in a decade,” or something like that. The Wall Street Journal, for instance, recently lamented that “[t]he Supreme Court has refused to take a gun case since 2011.” One small problem: These statements aren’t accurate.
In March 2016, the Supreme Court granted cert on another Second Amendment challenge. And it vacated the lower court ruling without any noted dissent. Because Caetano v. Massachusetts resulted in a GVR (grant, vacate, remand), the Court only issued a bland per curiam opinion. But the case is noteworthy nonetheless, both for what it shows about the Court’s willingness to correct erroneous lower court rulings and for Justice Alito’s vehement concurrence. Caetano shouldn’t be ignored in assessing the Supreme Court’s Second Amendment practice.
(Photo Credit: Nora V. Demleitner)
This past Saturday, the Center was fortunate to organize a hot topic panel discussion at the Association of American Law Schools Annual Conference in Washington, D.C. We used NYSRPA as a jumping off point to talk about open issues in Second Amendment law and scholarship. The main themes the speakers discussed were how Second Amendment rights can come into conflict with other rights, interests, or values, and how framing and rhetoric from both gun-rights advocates and gun-regulation proponents shapes constitutional law and discourse.
Before looking forward to the big cases, issues, and expectations for the year ahead in firearms law, we’d like to highlight the Center for Firearms Law’s achievements this past year. After launching in February, we hosted a roundtable discussion with historians of English and Irish history, held the first ever Firearms Law Works-in-Progress Workshop, and organized a symposium on Guns Rights and Regulation Outside the Home. We sponsored panels with distinguished scholars on diverse topics like the anti-tyranny view of the Second Amendment, the Supreme Court and the Second Amendment, extreme risk (aka “red flag”) laws, guns and domestic violence, and more. We launched this blog and have had guest posts from a dozen other experts so far. During the Court’s new Term, we started a weekly SCOTUS Gun Watch to track all the cases about firearms law or the Second Amendment pending before the Court. In the last month, we covered the oral arguments in New York State Rifle and Pistol Association v. City of New York on this blog, in numerous media outlets, and in a terrific and engaging discussion with Nina Totenberg in Washington, D.C. This year was, in short, a remarkable one for the Center. We expect the next year to be even better.
2020 also promises to be a watershed year for firearms law. We expect a decision in the Supreme Court’s first major Second Amendment case in a decade, and it would not at all be surprising for the Court to take another case (especially if it determines that NYSRPA is moot). Several major issues are raised in pending cert petitions, such as the constitutionality of “good cause” laws for public carry permits & bans on assault weapons and high-capacity magazines and how and whether prohibited persons can raise as-applied challenges to the federal laws indefinitely barring their firearm possession. Some or all of those issues are likely to be resolved or at least taken up this year. And we may get the Supreme Court’s stamp of approval or sign of rejection for the ubiquitous two-part framework and concomitant embrace or distancing from the alternative text, history, and tradition approach.
Outside the Supreme Court, other issues will likely continue to gain traction and attention in the next year. The spread of extreme risk (red flag) laws across the country will probably continue. Civil lawsuits arising from urban gun violence, diversion of illegal guns, and mass shootings are scheduled to proceed to discovery. The demand among young people and others for greater gun regulations shows no signs of stopping. And the proliferation of a backlash movement among gun rights supporters to create Second Amendment sanctuary cities, counties, and towns will likely proceed apace. These latter popular movements in fact echo one of the major substantive debates that I expect to occupy a lot of scholarly, public, and judicial attention in the next year: the conflict/intersection between the Second Amendment and competing rights, interests, and values.
In this next year, we’ll be here covering all these issues and continuing to bring together scholars of diverse backgrounds and perspectives to understand, assess, and explain them.
At the close of the year of the first Second Amendment cert grant in nearly a decade (setting Caetano aside), there are half a dozen petitions that have been discussed at conference and are awaiting the Court’s resolution of NYSRPA. That resolution could come next week, or it could take another 6 months. But one thing seems clear: with the new composition of the Supreme Court, the justices appear eager to more actively police the boundaries of the Second Amendment and advocates seem to have received the message.
Two cases are already up for discussion at conference in early January, Guedes and Worman. The former should not need to wait on NYSRPA for resolution, but I suspect the latter will be held. The next year is setting up to be another one where the Court could have a major impact on how the government can regulate firearms.
Two weeks ago, the Center was fortunate to host an event in Washington, D.C. on the oral arguments in NYSRPA. Like much of the commentary on this blog, and from Center leadership in media outlets, the focus was both on the signals from NYSRPA about the current justices’ approach to Second Amendment questions and about whether the Court’s justiciability doctrine would keep it from reaching the merits here.
We are grateful that Nina agreed to share her insightful views on the current Court and the hints from oral argument. Check out the discussion I moderated with Nina, Joseph, and Darrell below.
Another relatively quiet week on the Court’s gun docket. Two cases became fully briefed: Guedes which concerns the Trump Administration’s bump stock ban, and Worman, which concerns Massachusetts’s ban on assault weapons and high-capacity magazines. Guedes was distributed for conference in January, but Worman has not yet been scheduled for conference. (Lastly, I’ll just note that the responses in Matsura and Baker, are due on December 30 and January 2, respectively—barring any last minute extensions—so keep those lawyers drafting over the holidays in your thoughts. Similar timing for any potential reply brief in Malpasso. When I was in practice, I had a filing due December 28 one year and it was quite unpleasant.)