Second Amendment

The Federal Prohibitor and Unlawful Drug Users

I’m reading a draft of a fantastic forthcoming article by Dru Stevenson on the how federal drug law operates as what he calls one of the primary forms of gun control today. Under federal law anyone “who is an unlawful user of or addicted to any controlled substance” is forbidden from possessing firearms. So those active users are barred, whether they have any conviction or not. And, of course, the felon prohibitor in 18 U.S.C. § 922(g)(1) bars anyone who has ever had a felony drug conviction from ever again possessing firearms. We are fortunate that Dru will be blogging on his own article, but in this short post, I wanted to just highlight a few things that stood out to me from his article and the broader debate over guns and drugs (also the name of a great article by Benjamin Levin).

SCOTUS Gun Watch – Week of 2/10/20

The Court is still on winter recess and no new petitions have been filed, so we’re waiting still. Here’s where things 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 Cert Denied
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 distributed

24-Jan-20 conf. (relisted for 3rd conference)

Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) Cert Denied
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines distributed

10-Jan-20 conf.

Malpasso v. Pallozzi 4th Cir. 26-Sep-19 MD “may issue” public carry regime distributed

24-Jan-20 conf.

Pennsylvania v. Hicks Penn. 27-Sep-19 How a firearm can factor into reasonable suspicion under the Fourth Amendment Cert Denied
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents distributed for

21-Feb-20 conf.

Matsura v. United States 9th Cir. 25-Oct-19 Unlawful possession of a firearm by a prohibited person distributed for

21-Feb-20 conf.

Baker v. City of Trenton, MI 6th Cir. 26-Nov-19 Reasonableness of warrantless search in light of the Second Amendment distributed for

21-Feb-20 conf.

Wilson v. Cook County, IL 7th Circ. 27-Nov-19 Assault weapons and high-capacity magazine ban reply due @

17-Feb-20

Beers v. Barr 3rd Cir. 9-Jan-20 Unlawful possession of a firearm by a prohibited person (involuntarily committed) resp. due 11-Mar-20

Laws with an Ugly Past

A few weeks ago, the Supreme Court heard arguments in Espinoza v. Montana Dep’t of Revenue, which concerns the use of public funds for religious schools. Part of the issue in that case is what to make of Montana’s Blaine Amendment, a type of state constitutional provision that prohibits appropriating funds to religious sects or institutions. Although innocuous enough on their face, Blaine Amendments have a sordid history in virulent anti-immigrant and anti-Catholic bigotry. They raise the question about the relevance of legislative purpose to the constitutionality of governmental decrees. A similar issue often arises when talking about laws regulating guns. Just what role does an ugly past play in the constitutional calculus?

Scholarship Highlight: Cottrol & Diamond on Public Safety and the Second Amendment

Robert Cottrol and Ray Diamond have posted on SSRN a new piece on Public Safety and the Right to Bear Arms. In the piece, Cottrol and Diamond provide a detailed and thorough examination of the debates and historical understanding that influenced codification of the Second Amendment and its interpretation in the ensuing years, decades, and centuries.

SCOTUS Gun Watch – Week of 2/3/20

The Supreme Court is on winter recess for the next few weeks, so unless we have new petitions filed, I expect some (more) quiet in the near future. The next scheduled orders & opinions will not come out until Monday, February 24, with a possibility for some orders after the Court’s Friday, February 21 conference.

In the meantime, the Center is hosting a panel discussion tomorrow, February 4, on The Supreme Court’s Gun Docket with two local experts: Professors April Dawson from N.C. Central School of Law and Greg Wallace from Campbell Law School. We’re excited have them at Duke and will post the panel video on our site once we have it.

Litigation Highlight: Holloway & As-Applied Challenges

A new Third Circuit case, Holloway v. Attorney General, sheds more light on how that circuit will consider as-applied challenges to the federal felon prohibitor—18 U.S.C. § 922(g)(1). Consistent with its fractured opinion in Binderup v. Attorney General, the Holloway court reaffirmed that seriousness, not violence, is the proper measure for whether an otherwise disqualifying conviction can constitutionally be applied to permanently extinguish Second Amendment rights. Courts in the Third Circuit naturally (as one of the few circuits to have vindicated an as-applied challenge) have an active docket of as-applied challenges and Holloway will serve as additional guidance for courts confronted with these challenges.

Warped Narratives: Distortion in the Framing of Gun Policy

Every year in America, gun violence claims more than 35,000 lives, with gun-related injuries accounting for more than twice that number. Despite this staggering problem, the federal government has taken very little action since in the mid-1990s. How do we account for this policy stalemate and, some would say, failure on the part of public officials? The typical explanations focus on deepening political polarization and the power of the gun lobby (and the National Rifle Association, especially). While these factors are clearly significant, another aspect of the gun policy debate, reflecting a more general dysfunction of policymaking, deserves our attention: the framing of the policy issue.

Equilibrium Adjustment and Second Amendment Doctrine

Almost a decade ago, Professor Orin Kerr wrote a brilliant article called “An Equilibrium-Adjustment Theory of the Fourth Amendment.”  In it, he posited a theory of the Fourth Amendment that describes judges applying Fourth Amendment doctrine so as to maintain some equilibrium between police power and personal liberty.   As he writes:

When changing technology or social practice makes evidence substantially harder for the government to obtain, the Supreme Court generally adopts lower Fourth Amendment protections for these new circumstances to help restore the status quo ante level of government power. On the other hand, when changing technology or social practice makes evidence substantially easier for the government to obtain, the Supreme Court often embraces higher protections to help restore the prior level of privacy protection.

SCOTUS Gun Watch – Week of 1/27/20

The Supreme Court has been quiet as we await NYSRPA. No action on the cases it heard last Friday at conference.

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 Cert Denied
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 distributed

24-Jan-20 conf. (relisted for 3rd conference)

Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) Cert Denied
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines distributed

10-Jan-20 conf.

Malpasso v. Pallozzi 4th Cir. 26-Sep-19 MD “may issue” public carry regime distributed

24-Jan-20 conf.

Pennsylvania v. Hicks Penn. 27-Sep-19 How a firearm can factor into reasonable suspicion under the Fourth Amendment Cert Denied
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents to be conf.

 

Matsura v. United States 9th Cir. 25-Oct-19 Unlawful possession of a firearm by a prohibited person distributed for

21-Feb-20 conf.

Baker v. City of Trenton, MI 6th Cir. 26-Nov-19 Reasonableness of warrantless search in light of the Second Amendment distributed for

21-Feb-20 conf.

Wilson v. Cook County, IL 7th Circ. 27-Nov-19 Assault weapons and high-capacity magazine ban resp. due 3-Feb-20
Beers v. Barr 3rd Cir. 9-Jan-20 Unlawful possession of a firearm by a prohibited person (involuntarily committed) resp. due 10-Feb-20