SCOTUS Gun Watch, Episode 5

Unlike last week, with the big news about the Court’s decision not to hear the Remington case arising from the shooting at Sandy Hook Elementary, this week was quieter. But we did get an unusual letter from the Solicitor General about NYSRPA. In that letter, filed on Friday afternoon, the SG informed the Court that, although it had previously taken no position on the mootness question, it had since determined that “[i]n the United States’ view, respondents have not established that this case is moot.” It offered to file a brief to that effect, which the Supreme Court accepted—asking for a letter brief in the next few hours. The SG obliged, arguing that the potential for prospective relief kept the case alive, but rejecting most of petitioners’ broader alternative theories that the case was not moot. [Update: I originally said the SG gave two reasons the case was not moot, but on closer read the SG really appears to argue just one core avenue, though he hedged a bit on other reasons the petitioners gave; ultimately, he rejected most of those.] The Court gave each of the parties opportunity to respond by Wednesday, November 20th at 2pm (just in time for the Thanksgiving holiday).

Here’s where the rest of the cases, mostly unchanged since last week, stand:

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 distributed for

22-Nov-19 conf.

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 resp. due 4-Dec-19
Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) reply due @ 18-Nov-19
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines resp. due 9-Dec-19
Malpasso v. Hamilton 4th Cir. 26-Sep-19 MD “may issue” public carry regime resp. due 18-Dec-19
Pennsylvania v. Hicks Penn. 27-Sep-19 How a firearm can factor into reasonable suspicion under the Fourth Amendment reply due @ 14-Nov-19
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents resp. due 13-Jan-20
Matsura v. United States 9th Cir. 25-Oct-19 Unlawful possession of a firearm by a prohibited person resp. due 29-Nov-19

 

SCOTUS Gun Watch, Episode 4

The big news from this week is that the Supreme Court denied certiorari in the case arising from the Sandy Hook massacre—Remington v. Soto. As I’ve written about (here and here), the Court might have been concerned about vehicle issues with the petition. The petition raised a question about whether the federal law immunizing gun manufacturers in most situations, the Protection for Lawful Commerce in Arms Act, applied to these facts. Because the case came up from an interlocutory ruling, there was some question about the Supreme Court’s appellate jurisdiction. But, in any event, the case may now proceed through discovery and to trial. More surprising to me than the fact that the Court denied review was the fact that there was no noted dissent from the denial.

I’ve also added one more case to the chart: Pennsylvania v. Hicks. The petition was filed a little over a month ago, but I didn’t initially include it because firearms are only tangentially involved. But, because it raises a question about how the presence of firearms affects law enforcement’s ability to conduct investigatory stops, and with increasingly loosened restrictions on public carry, I thought it worth keeping an eye on.

We also have our first briefing deadline extended into the New Year, ensuring that 2020 will bring just as much debate over guns as 2019 did.

SCOTUS Gun Watch, Episode 3

Last week was another relatively quiet week on the gun docket. A few briefing deadlines were extended, and we got one new firearms-related cert petition this week in a case seeking GVR (grant, vacate, and remand; a form of summarily sending a case back to the lower court to consider in light of a recent Supreme Court case or other intervening change in law). That case argues GVR is warranted in light of last term’s Rehaif decision requiring the government to prove that an individual prohibited from possessing guns knew the status that made his possession unlawful (here, his particular immigration status).

One highlight for the week: the case arising from the Sandy Hook massacre—Remington v. Soto—which I’ve written about a couple of times (here and here), goes to its first conference this Friday. It’s possible, though unlikely, that we’ll hear news about the Court’s decision to hear the case or not in the orders coming next Tuesday after the conference. (Monday’s a federal holiday next week, so no orders then.) It’s more likely we’ll have to wait a little longer if the Court is inclined to hear the case as the Court increasingly relies on the practice of relisting a case for multiple conferences in the event it’s going to grant review.

Panel on Guns and Domestic Violence: U.S. & International Human Rights Law Perspectives

On October 14, the Center co-hosted a panel with distinguished speakers for a discussion on the role of firearms in domestic violence situations. The speakers recounted some truly disturbing statistics: about 4.5 million women have been threatened with a gun by an intimate partner; almost a million women have been shot or shot at by a partner; and a woman is five times more likely to be killed in a domestic violence situation if the abuser has access to a gun. The Department of Justice’s Office on Violence Against Women has highlighted this research that has shown that “the presence of a gun in domestic violence situations significantly increases the risk of homicide, endangering victims, other family members, bystanders and coworkers.” Center faculty co-director Darrell Miller facilitated the insightful discussion.

The Textualist Consequentialist? Second Amendment Implications of the Title VII Arguments

There was a curious exchange in the most recent cases testing the boundaries of Title VII’s proscription against sex discrimination in employment. In R.G. & G.R. Harris Funeral Homes v. EEOC, an employee who alleges she was fired for identifying as a transgender woman claims that that adverse action violates the Civil Rights Act of 1964. Much of the focus in the oral arguments for Harris Funeral Homes, and a set of closely-related sexual orientation discrimination cases heard that same day, centered on the text of the statute. No doubt part of this emphasis arose from the plaintiffs’ strategic calculation that a tight textual argument may be enough to sway one of the Court’s staunchest textualists, Justice Neil Gorsuch, even if he may not be a natural ally in these cases. But some of his questioning raised concerns that he may, in the end, be only a “faint-hearted textualist”—much as Justice Scalia confessed that “in a crunch” he might have “prove[d] a faint-hearted originalist.”

Litigation Highlight: No Compensation for Bump Stock Owners

In response to the horrific Las Vegas massacre, which left 58 dead and many more injured, the Trump Administration issued a Final Rule in December 2018 classifying bump stocks–the device the shooter used to inflict maximal carnage–as “machine guns” and thus banned under federal law. A group of individuals and entities who owned previously legal bump stocks sued in the Court of Federal Claims, arguing that they were entitled to compensation under the Fifth Amendment’s Taking Clause for having to destroy their property. On October 23, 2019, in Modern Sportsman v. United States, the Court of Federal Claims dismissed the challenge, holding that the Final Rule was promulgated pursuant to the police power to protect public safety and therefore not a compensable taking under the Fifth Amendment. The decision could have implications for the pending challenge to the Rule itself and to the viability and scope of new proposals for federal assault-weapons bans.

New Blog Feature: SCOTUS Gun Watch, Episode 1

We’re excited to announce a new blog feature that will be a recurring Monday fixture of the blog throughout the Supreme Court’s Term. Each week, we will provide an up-to-date run down of where things stand with the Court’s firearms law and Second Amendment docket. To that end, each Monday will feature an updated chart below based on action taken at the Court throughout the prior week, including new petitions for certiorari that have been filed, Court action on currently pending petitions, changes in deadlines or notations that a case has been set for conference or relisted, etc. We’ll do our best to ensure accuracy, but if you notice anything missing or outdated, please feel free to let us know at firearmslaw@law.duke.edu.

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 relisted for 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 reply due @ 1-Nov-2019
Remington Arms v. Soto Conn. 1-Aug-19 Scope of  gunmaker immunity under the Protection for Lawful Commerce in Arms Act reply due @ 18-Oct-2019
Guedes v. ATF D.C. Cir. 29-Aug-19 Ban on bump stocks resp. due 4-Nov-2019
Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) resp. due 4-Nov-2019
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines resp. due 25-Oct-19
Malpasso v. Hamilton 4th Cir. 26-Sep-19 MD “may issue” public carry regime resp. requested – due 18-Nov-19
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents resp. due 14-Nov-19

Litigation Highlight: New Cert Petition in Culp v. Raoul

Last week, several plaintiffs filed a petition for certiorari asking the Supreme Court to review a Seventh Circuit decision upholding Illinois’s refusal to allow most non-residents to apply for a concealed-carry license. Here’s from the Question Presented:

This Court has held that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008). Illinois prohibits the non-residents of 45 states from applying for an Illinois concealed carry license, regardless of their individual qualifications and training.

 The question presented is:

Whether the Second Amendment right to keep and bear arms requires that the State of Illinois allow qualified non-residents to apply for an Illinois concealed carry license.

The response is currently due November 14, 2019. Like its other pending Second Amendment cases, the Court may very well decide to hold Culp until it resolves New York State Rifle & Pistol Association v. City of New York.

This Week’s SCOTUS Action on Pending Second Amendment Petitions

As I highlighted at the beginning of the week, heading into the new Term, the Supreme Court had (by my count) 14 outstanding petitions for certiorari raising Second Amendment or firearms-law related questions. Many of these cases had been considered at conferences last Term and, we suspect, are being held pending the outcome in NYSRPA. Coming out of the Long Conference, the Court did, however, dispose of two of the cases it recently considered:

Armament Services v. Barr 3d Cir. 19-June-19 What constitutes a “willful” violation of the Gun Control Act for revocation of a Federal Firearm License distributed 1-Oct-19 conference & cert denied 7-Oct-19
Miller v. Ferguson 9th Cir. 23-July-19 Ban on firearm possession (as sufficient restraint to invoke habeas) distributed 1-Oct-19 conference & cert denied 7-Oct-19

These were probably the two least likely to be affected by any outcome in NYSRPA, so it’s perhaps not surprising that the Court acted on them now.

The Court also denied the City’s Suggestion of Mootness in NYSRPA. But it also said that “[t]he question of mootness will be subject to further consideration at oral argument, and the parties should be prepared to discuss it.” There’s no doubt, then, that we’ll soon have oral argument in a case raising a Second Amendment challenge for the first time since March 2, 2010.