Supreme Court

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.”

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 We’ll do our best to ensure accuracy, but if you notice anything missing or outdated, please feel free to let us know at firearmslaw@law.duke.edu.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.

 

 

Outstanding Second Amendment and Firearms Law Cert Petitions

As the Supreme Court starts its new Term, with one Second Amendment case docketed (for now), it seems like a good time to review the outstanding petitions awaiting action at the Court. These petitions raise a variety of Second Amendment and firearms-related issues, including important questions of statutory interpretation and the scope of agency discretion. I’ve previously written about the recent requests for Supreme Court review (here and here) and, surprisingly or not, many of the petitions highlighted there–more than four months ago–have yet to be acted on.

Below are the petitions outstanding at the Court (sorted by date the petition was filed). Note that some of these may be resolved on Monday when orders from the Long Conference are expected.

 

Case Court 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 conference

Rogers v. Grewal  3rd Cir. 20-Dec-18 NJ “may issue” public carry regime distributed

23-May-19 conference

Pena v. Horan  9th Cir. 28-Dec-18 California’s Unsafe Handgun Act (microstamping, etc.) distributed

12-Apr-19 conference

Gould v. Lipson  1st Cir. 1-Apr-19 MA “may issue” public carry regime (as implemented locally) distributed

6-June-19 conference

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

Cheeseman v. Polillo N.J. 28-June-19 NJ “may issue” public carry regime relisted for 18-Oct-19 conference
Ciolek v. New Jersey N.J. 18-July-19 NJ “may issue” public carry regime distributed

1-Oct-19 conference

Miller v. Ferguson 9th Cir. 23-July-19 Ban on firearm possession (as sufficient restraint to invoke habeas) distributed

1-Oct-19 conference

Daniel v. Armslist Wisc. 29-July-19 Scope of immunity for gun-broker website under Communications Decency Act resp. due 18-Oct-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. due 30-Oct-19

 

 

 

 

Did the Supreme Court Dictate Lower Courts’ Second Amendment Interpretive Theory?

In Ezell v. City of Chicago, the Seventh Circuit concluded that it had “to follow the Court’s lead in resolving questions about the scope of the Second Amendment by consulting its original public meaning as both a starting point and an important constraint on the analysis.” In other words, the Seventh Circuit thought it was bound to an originalist methodology in assessing Second Amendment claims. In his concurring opinion in Kisor v. Wilkie last term, Justice Gorsuch may have cast some doubt on such a strong assumption.

Two New Second Amendment Cert Petitions

In the last few weeks, two new cert petitions have been filed asking the Supreme Court to review recurrent issues in litigation over the right to keep and bear arms. Below are links to the petitions and excerpts of their Questions Presented. We’ll be watching these as the Court comes back to a new Term next week.

Litigation Highlight: Duncan v. Becerra

In March, a federal district court in California became the first federal court in the land to strike down a ban on large-capacity magazines. In a striking opinion stretching for 86 pages, Judge Roger Benitez touted the timeless principles of “[i]ndividual liberty and freedom” when he held that California could not constitutionally prohibit the transfer or possession of magazines holding more than 10 rounds. Now, that case is on appeal in Ninth Circuit.

The government’s opening brief is here. The challengers’ response brief—filed just yesterday—is here. What’s noteworthy is that a new attorney has entered an appearance for the challengers: Paul Clement, a powerhouse Supreme Court litigator who is the only advocate in the past decade to successfully convince the Court to hear a Second Amendment challenge. He’s scheduled to argue the most recent challenge, New York City Rifle & Pistol Association v. City of New York, on December 2 of this year. Whatever happens in NYSRPA, the Duncan case out of California is certainly one to watch.

Heller and the Vagaries of History

By now, Heller’s central holding is familiar: whatever other restrictions it may impose, the government cannot ban handgun possession in the home because “the American people have considered the handgun to be the quintessential self-defense weapon.” But what “people” made that choice? Not The People who ratified the Second Amendment in 1791. For them, the “quintessential self-defense weapon” was almost certainly a musket or hunting rifle, if a firearm at all. Does it matter that, through sheer happenstance, Heller was decided in 2008 when handguns were the predominant self-defense weapon?