SCOTUS Gun Watch – Week of 12/16/19

After all the excitement the last few weeks, it has been quiet at the Court for gun cases. No new petitions were filed this week, and we’ve seen no more movement on any of the pending ones. It also seems that NYSRPA is more than likely going to take a few more weeks or months, and not days, for the Court to issue its decision. We’ll be watching when the Court next convenes in the New Year!

Annotated Oral Argument Transcript for NYSRPA

After oral arguments in New York State Rifle & Pistol Association v. City of New York, we’ve been poring over the transcript, listening to the audio, and reading all the reactions from Court watchers and others inside the room. We’ll have more to say in the coming weeks (including tomorrow night at our event in D.C. with Nina Totenberg), but for now we’re posting this annotated oral argument transcript with our take on what stood out to us. We’ve included comments on specific arguments and exchanges as well as highlights of particular phrasing or language that we thought noteworthy. Check it out!

NYSRPA Mark-up – Duke Center for Firearms Law


SCOTUS Gun Watch, Episode 8

This post-NYSRPA week saw some more action at the Court. No new grants or orders in NYSRPA—though it’s possible we may get more orders on Tuesday this week. But the Supreme Court did deny cert in two pending petitions on the chart below, one of which was surprising to me. In that case, Medina v. Barr, the challenger claimed that the felon firearm prohibition—922(g)(1)—was applied unconstitutionally in his case because his conviction was old and for a non-violent offense. The D.C. Circuit had rejected the claim. But not only had the Court rejected the claim, it rejected even the idea that typical felons could mount as-applied challenges to 922(g)(1), something several courts of appeals have permitted or assumed could be brought. What’s surprising is that the Court did not hold Medina pending its determination in NYSRPA in the same way it has apparently been holding the first six cases below. As I noted on Twitter, perhaps the Court decided something about NYSRPA in its conference last Friday that means it would make little sense to hold any new cases. We’ll likely soon see.

The new petition, in Wilson v. Cook County, challenges a local assault weapons and high-capacity magazine ban. What’s interesting about that case (beyond the substance) is that the challengers actually raise as a question presented the issue about the proper methodology for resolving Second Amendment claims.

Center Media Roundup

This past week was a whirlwind for the Center. Center leadership talked with more than a dozen media outlets about the Supreme Court’s first substantive return to the Second Amendment in nearly a decade. Here’s a roundup of the Center’s commentary this past week on NYSRPA:

Miller discusses gun case before the Supreme Court and the constitutional right to transport a gun | National Constitution Center – December 5, 2019

Blocher appears as full-hour guest discussing yesterday’s oral arguments in gun law case before the Supreme Court | WBUR’s On Point – December 3, 2019

Charles ’13: Adopting the “historical analog” test to determine the constitutionality of gun laws could severely impact the current regulatory landscape | Medill News Service – December 3, 2019

Blocher says Supreme Court’s decision in “outlier” case could constrict the freedom of localities to craft their own gun regulations | Route Fifty – December 2, 2019

Blocher: A new test for evaluating the constitutionality of gun laws could have far-reaching implications | NPR’s Weekend All Things Considered – December 2, 2019

Fate of two-step constitutionality test for gun regulations is in the hands of the Supreme Court, Blocher says | The Hill – December 2, 2019

Blocher: Second Amendment law would be transformed by a shift to evaluating the constitutionality of gun laws based on text, history, and tradition | MSNBC with Ali Velshi – December 2, 2019

Blocher scholarship: Challenges to gun restrictions post-Heller have largely failed due to weak claims, not judicial resistance | The New York Times – December 2, 2019

Study co-authored by Blocher is cited: Lower courts have rejected challenges to gun restrictions in more than 90% of post-Heller rulings | The Wall Street Journal – December 2, 2019

SCOTUS may use today’s Second Amendment case to clarify how courts should evaluate the constitutionality of gun laws, Blocher says | Agence France Presse – December 2, 2019

Miller says new conservative justices “quite likely” to grant cert to cases that would help clarify the scope and terms of the Second Amendment post-Heller; states’ carry laws at center of litigation | KPCC Public Radio (Calif) – December 2, 2019

Blocher says the stakes are “potentially huge” as Supreme Court hears challenge to NY gun restriction | USA Today – December 1, 2019

Blocher: SCOTUS should dismiss as moot the legal challenge to a New York gun ban; Court will hear case Monday | The Crime Report – November 29, 2019

The “Text, History, and Tradition” Alternative

I’ve written previously about the surprising agreement among courts of appeals interpreting and applying the Second Amendment. They all agree, for instance, that the standard two-part framework is the best way to analyze Second Amendment challenges. Under that framework, the first question is whether the challenged law burdens conduct protected by the Constitution; if it does, the second question is whether the law passes some form of heightened scrutiny. But there’s an alternative test that has been strongly urged by gun-rights advocates and some dissenting judges. That test looks solely to “text, history, and tradition” to assess compliance with the Second Amendment. This debate peaked through the mootness fog during this week’s NYSRPA arguments.

SCOTUS Gun Watch, Episode 7

The big recent news from the Supreme Court on guns is, of course, the oral argument in NYSRPA that happened on Monday morning. We’ve had some initial analysis of that argument, and will have some more later on. For now, I’m updating the SCOTUS Gun Watch with other pending petitions and a new one. As I’ve noted before, if the Court does dismiss NYSPRA as moot, that decision makes it all the more likely that one of the petitions below will be granted.

Of interest on those, Paul Clement, who represented NYSRPA and argued on Monday, also represents the challengers in Rogers v. Grewal.

Quick Reactions from NYSRPA Oral Arguments

After reading the NYSRPA transcript and hearing the insights from numerous veteran Court watchers, I have some initial reactions to oral argument today.

First, as expected, the overwhelming majority of time during argument was spent on the question of mootness. That could have been a function of the vociferousness with which the left-leaning justices attacked the challengers’ position—with Justice Sotomayor taking an especially active role. At one point she told the challengers’ lawyer that “what you’re asking us to do is to take a case in which the other side has thrown in the towel and completely given you every single thing you demanded in your complaint for relief, and you’re asking us to opine on a law that’s not on the books anymore.” Justice Gorsuch and Justice Alito, on the other hand, appeared to think the case still presented a live controversy. They suggested there was controversy over the new City regulation, which permits “continuous and uninterrupted” travel to the places the challengers sought to go. Justice Kavanaugh did not ask a single question, and the Chief Justice didn’t necessarily indicate which way he was leaning. He did, however, seek assurances from the City that nothing from the old law would have any adverse consequences on petitioners.

Second, there does seem to be an appetite among some conservative justices for a rethinking of the methodology used for deciding Second Amendment cases. Justice Alito, for example, first broached the question in the second half of the argument: “what methodology should the courts use in approaching Second Amendment questions?” Counsel for the City argued that text, history, and tradition are relevant but because they do not often speak with one voice they will likely not be conclusive. Notably, the text, history, and tradition test is the one Justice Kavanaugh himself advocated when he was on the court of appeals. Under his formulation of that test,

Gun bans and gun regulations that are longstanding – or, put another way, sufficiently rooted in text, history, and tradition – are consistent with the Second Amendment individual right. Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history, and tradition are not consistent with the Second Amendment individual right.

There’s little reason to think he’s changed his mind in the intervening years since he assumed his high court seat.

We’ll have more coverage of the case this week and next as we further digest the transcript more fully. It’s also worth noting that, whatever happens with NYSRPA, there are at least half a dozen cert petitions squarely presenting Second Amendment questions waiting on action from the Court. A dismissal of NYSRPA on mootness grounds certainly makes it more likely the Supreme Court will take one of those other cases.

What to Watch: New York State Rifle & Pistol Association vs. City of New York

This morning, the Supreme Court will hear argument in NYSRPA, the Second Amendment challenge to a now-repealed New York City rule that prohibited individuals holding a premises license from taking their gun outside of the City (with limited exceptions). It is the first oral argument in a Second Amendment case since March 2, 2010. When NYSRPA granted in January, there was a debate about whether the Court took the case to strike down an outlier law—much like the ones it struck down in Heller and McDonald—or to make a broader ruling on the scope of the Second Amendment and the methodology lower courts should use moving forward. But things changed this summer when the City repealed the challenged rule; New York State, which is not a party, also changed the law so that the City could not reenact the challenged rule even if it wanted to. The debate changed from one about the breadth of the potential ruling to one about whether there would (or should) be a Second Amendment ruling at all.

In any event, here’s what I’m watching for in the arguments today:

  • How quickly the questioning turns to mootness and how focused the justices appear to be on that issue as opposed to the merits
  • Whether the justices press the Solicitor General on the theory that the mere possibility of nominal damages suffices to keep a case from mootness—and on the SG’s rejection of petitioners’ other theories for why the controversy remains live
  • Whether the justices look like they agree with the petitioners’ view that there’s something suspect about statutory changes if such changes seem designed to moot a case
  • Whether the justices appear to believe there’s a widespread problem with how lower courts are interpreting and applying Heller or whether the now repealed law (and lower court ruling) is an outlier
  • What kind of purchase the text, history, and tradition test appears to get from the justices
  • What signals we get from the new justices who were not around when Heller and McDonald were decided about their views of the scope of the Second Amendment

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.