In reading the Supreme Court’s recent double-jeopardy opinion, Gamble v. United States, it struck me just how many major constitutional law cases involve guns and guns laws, even if sometimes at the periphery. Gamble, for instance, complained that his state law conviction for being a felon in possession of a firearm precluded his indictment under 18 U.S.C. § 922(g)(1). Like in Gamble, the regulations of firearms have played a supporting role in many major cases residing in the constitutional law canon.
Earlier this week, the Supreme Court unanimously decided a sleepy statutory interpretation question concerning the Outer Continental Shelf Lands Act. That case, however, may contain clues about how the Court could approach the interpretive question involved in the Sandy Hook litigation over the Protection for Lawful Commerce in Arms Act (PLCAA).
The Connecticut Supreme Court recently allowed a suit arising from the Sandy Hook shooting to proceed against Remington. In doing so, it rejected Remington’s argument that the Protection for Lawful Commerce in Arms Act (PLCAA) bars the suit. Remington plans to seek U.S. Supreme Court review. But can it seek that review now?
In a sign that litigants are hoping the changed composition of the Supreme Court—Justice Kavanaugh’s replacement of Justice Kennedy—will lead to reconsideration of some lower court Second Amendment precedents, plaintiffs recently brought a lawsuit challenging Maryland’s requirement that an applicant for a concealed carry permit show a “good and substantial reason” in order to obtain one.
In Heller, McDonald, and now potentially in NYSRPA, the Supreme Court established Second Amendment principles that have been the basis for more than 1,000 Second Amendment challenges in the past ten years. Notably, each of the Supreme Court’s cases involved an outlier law—DC and Chicago were the only notable US cities with handgun bans, and New York’s law is such an oddity that the city itself has effectively disclaimed any interest in it.
The Supreme Court in January agreed to hear its first Second Amendment challenge after a decade of (relative) silence. But other than New York State Rifle & Pistol Association v. City of New York (NYSRPA), there are—by my count—five other pending petitions asking the Court to review lower courts’ Second Amendment (or related firearms) rulings, with more likely to join in the coming months.