Supreme Court

SCOTUS Gun Watch – Week of 3/2/20

There was some thought after oral argument in NYSRPA that, given the tenor of questioning, a per curiam opinion on mootness would issue not too long after argument. As the case stretches out into the term, there may be some hope yet for the challengers to get a ruling on the merits. At the same time, it’s at least equally likely that a majority will rule on mootness grounds and that the delay is the result of one or more justices writing separate concurring/dissenting opinions addressing the merits. Only time will tell. And it is unlikely we’ll hear more news on the pending petitions until NYSRPA is dealt with (with the exception of non-Second Amendment firearms cases, like Guedes v. ATF below).

The Court today declined to take Guedes, the challenge to the Trump administration’s ban on bump stocks. Justice Gorsuch wrote separately, and only for himself. He argued that Chevron deference should have had no effect on the lower courts’ decisions upholding the ATF’s reinterpretation of what the term “machinegun” covers. As he says of the agency’s changing positions, “[W]hy should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?” Though he ultimately agreed with the other justices that this case (in its current posture) was not a good vehicle for cert, he noted the other cases percolating in the lower courts and cautioned that “waiting should not be mistaken for lack of concern.”

SCOTUS Gun Watch – Week of 2/24/20

With the Court’s return from winter recess, we have a little more news than we’ve had in a few weeks. The Court, as expected, granted cert in Matsura to vacate the judgment below and remand in light of last Term’s decision in Rehaif v. United States, requiring the government to prove an individual knew his status that made him a prohibited person. (The Court also sent back two other cases in a similar posture as Matsura.) The Court also denied cert in Baker, challenging the reasonableness of a search in light of the Second Amendment.

Also, we have a new cert petition filed this week. In Rodriguez v. San Jose, the petitioner challenges the Ninth Circuit’s denial of her Second and Fourth Amendment claims arising from a warrantless seizure of her firearms after law enforcement took her husband into custody for a mental health evaluation.

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

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.

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

Cert Petition Highlight: Beers v. Barr & Prohibited Persons

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.

SCOTUS Gun Watch – Week of 1/13/20

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.

Caetano’s Erasure

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.