Supreme Court

The Year Ahead in Firearms Law and the Second Amendment

Before looking forward to the big cases, issues, and expectations for the year ahead in firearms law, we’d like to highlight the Center for Firearms Law’s achievements this past year. After launching in February, we hosted a roundtable discussion with historians of English and Irish history, held the first ever Firearms Law Works-in-Progress Workshop, and organized a symposium on Guns Rights and Regulation Outside the Home. We sponsored panels with distinguished scholars on diverse topics like the anti-tyranny view of the Second Amendment, the Supreme Court and the Second Amendment, extreme risk (aka “red flag”) laws, guns and domestic violence, and more. We launched this blog and have had guest posts from a dozen other experts so far. During the Court’s new Term, we started a weekly SCOTUS Gun Watch to track all the cases about firearms law or the Second Amendment pending before the Court. In the last month, we covered the oral arguments in New York State Rifle and Pistol Association v. City of New York on this blog, in numerous media outlets, and in a terrific and engaging discussion with Nina Totenberg in Washington, D.C. This year was, in short, a remarkable one for the Center. We expect the next year to be even better.

2020 also promises to be a watershed year for firearms law. We expect a decision in the Supreme Court’s first major Second Amendment case in a decade, and it would not at all be surprising for the Court to take another case (especially if it determines that NYSRPA is moot). Several major issues are raised in pending cert petitions, such as the constitutionality of “good cause” laws for public carry permits & bans on assault weapons and high-capacity magazines and how and whether prohibited persons can raise as-applied challenges to the federal laws indefinitely barring their firearm possession. Some or all of those issues are likely to be resolved or at least taken up this year. And we may get the Supreme Court’s stamp of approval or sign of rejection for the ubiquitous two-part framework and concomitant embrace or distancing from the alternative text, history, and tradition approach.

Outside the Supreme Court, other issues will likely continue to gain traction and attention in the next year. The spread of extreme risk (red flag) laws across the country will probably continue. Civil lawsuits arising from urban gun violence, diversion of illegal guns, and mass shootings are scheduled to proceed to discovery. The demand among young people and others for greater gun regulations shows no signs of stopping. And the proliferation of a backlash movement among gun rights supporters to create Second Amendment sanctuary cities, counties, and towns will likely proceed apace. These latter popular movements in fact echo one of the major substantive debates that I expect to occupy a lot of scholarly, public, and judicial attention in the next year: the conflict/intersection between the Second Amendment and competing rights, interests, and values.

In this next year, we’ll be here covering all these issues and continuing to bring together scholars of diverse backgrounds and perspectives to understand, assess, and explain them.

SCOTUS Gun Watch – Week of 12/30/19

At the close of the year of the first Second Amendment cert grant in nearly a decade (setting Caetano aside), there are half a dozen petitions that have been discussed at conference and are awaiting the Court’s resolution of NYSRPA. That resolution could come next week, or it could take another 6 months. But one thing seems clear: with the new composition of the Supreme Court, the justices appear eager to more actively police the boundaries of the Second Amendment and advocates seem to have received the message.

Two cases are already up for discussion at conference in early January, Guedes and Worman. The former should not need to wait on NYSRPA for resolution, but I suspect the latter will be held. The next year is setting up to be another one where the Court could have a major impact on how the government can regulate firearms.

NYSRPA Discussion with Nina Totenberg

Two weeks ago, the Center was fortunate to host an event in Washington, D.C. on the oral arguments in NYSRPA. Like much of the commentary on this blog, and from Center leadership in media outlets, the focus was both on the signals from NYSRPA about the current justices’ approach to Second Amendment questions and about whether the Court’s justiciability doctrine would keep it from reaching the merits here.

We are grateful that Nina agreed to share her insightful views on the current Court and the hints from oral argument. Check out the discussion I moderated with Nina, Joseph, and Darrell below.

Watch HERE!

SCOTUS Gun Watch – Week of 12/23/19

Another relatively quiet week on the Court’s gun docket. Two cases became fully briefed: Guedes which concerns the Trump Administration’s bump stock ban, and Worman, which concerns Massachusetts’s ban on assault weapons and high-capacity magazines. Guedes was distributed for conference in January, but Worman has not yet been scheduled for conference. (Lastly, I’ll just note that the responses in Matsura and Baker, are due on December 30 and January 2, respectively—barring any last minute extensions—so keep those lawyers drafting over the holidays in your thoughts. Similar timing for any potential reply brief in Malpasso. When I was in practice, I had a filing due December 28 one year and it was quite unpleasant.)

Guns and Lattes: Lethal Analogies and the Future of the Second Amendment

In New York State Rifle & Pistol Association Inc. v. City of New York, New York, the first gun case to reach the high court in almost a decade, gun rights advocates pushed their conception of the scope of the right in a novel direction.  The city regulation being challenged in the case restricted New York City residents who had obtained a premises license from traveling with their arms in public apart from a few well-defined exceptions. The challenged regulation did allow permit holders to take their weapons to firing ranges in the city but prohibited them from taking guns to a country house or firing range outside of the city.   Much of the oral argument focused on the fact that the original regulation at the heart of the case had already been repealed by the city and preempted by new state regulations that effectively barred the city from re-enacting the regulation. In the technical language of the law the case had been mooted.  One legal commentator even compared the case to the famous Monty Python sketch in which a dead parrot is palmed off as merely resting.  The irate customer eventually declares: “This is an ex-parrot.” Several justices, frustrated with the arguments presented by former solicitor general Paul Clement, stopped short of mimicking Monty Python’s John Cleese, but the underlying point was the same. There is no live issue in this case for the Supreme Court to adjudicate.  Most court watchers feel that because it no longer represents a live controversy, a requirement hard wired into the Supreme Court’s Article III constitutional power to hear cases, it will be mooted.

More on Text, History, and Tradition and NYSRPA

Much of the oral argument in NYSRPA v. New York City dealt with mootness: whether there was even a case or controversy before the court, as required by Article III of the United States Constitution.   But someday, whether in NYSRPA or some other case, the Court will have to address the question of which method to use to analyze the Second Amendment.  The two main contenders are the two-part framework, adopted by most of the lower courts; and text, history, and tradition, endorsed by a minority of judges, including now-Justice Brett Kavanaugh.

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