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.
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.
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.
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?
Brian Frye & Maybell Romero’s new (and endearing) draft, The Right to Unmarry: A Proposal, argues that, “waiting periods, even if well-intended, place a substantial burden on the right to unmarry in a paternalistic and infantilizing fashion.” Similar arguments are made about waiting periods to purchase firearms, though courts have upheld them against Second Amendment challenge. And, in Planned Parenthood v. Casey, of course, the Supreme Court upheld a waiting period for abortion. The questions these laws prompt are difficult enough in ordinary times, but what about in a pandemic? Courthouses may process marriage or dissolution paperwork more slowly, law enforcement may find itself unable to timely complete background checks required for firearm transfers, and states may want to limit non-essential medical procedures, like some abortions, ostensibly to conserve healthcare resources. The Fifth Circuit recently upheld Texas’s power to delay abortions in the midst of the pandemic. (As I’m writing this, the district court has entered a new, narrower order halting the Texas delay.) What effect might the Fifth Circuit’s reasoning have on gun store closure orders?
In 1967, California codified into law A.B 1591, otherwise known at the Mulford Act. Sponsored by Oakland assemblyman Don Mulford, A.B. 1591 made it a felony to publicly carry any firearm—either openly or concealed—in public places without a governmental license to do so. The law came about after the events of May 2, 1967, when a group of thirty Black Panthers appeared visibly armed at the California State Capitol building to protest an earlier version of A.B. 1591. At that time, there was nothing in California law that expressly prohibited the open carriage of firearms, either in public or private. A.B. 1591 effectively closed this loophole.
No new action at the Court on gun cases in the past week or in the orders and opinions issued this morning. We’ll keep our eyes out on the week ahead.
Nationwide, state and local officials have issued emergency orders closing vast sectors of the economy in order to prevent the spread of coronavirus. Gun rights advocates have responded with lawsuits claiming, inter alia, that the Second Amendment exempts them from these orders. Their argument, in essence, is that the right to keep and bear arms guarantees gun stores a carve out from neutral rules of general applicability. But does it?