SCOTUS Gun Watch – Week of 3/16/20

With the COVID-19 pandemic sweeping the globe, even the Supreme Court has been hit. It has announced postponement of the next oral argument sitting, suggesting we may see some delays. The Court says it will still hold its scheduled conference this Friday and will still release orders next Monday. We’ll see if any news on gun cases comes out of the high court while we await a (hopeful) return to normalcy. In the meantime, no new updates on the Court’s gun docket, though one case I highlighted last week may be a candidate for a future cert petition.

As readers know, this weekly post highlights cases at the Supreme Court, but I also want to take an opportunity to highlight two resources I use to help keep track of the lower court litigation over firearm rights: the Gun Case Tracker by an extremely knowledgeable gun-rights advocate I know only as Rob (who tweets at @2Aupdates) and the Second Amendment Courtwatch by the Giffords Law Center to Prevent Gun Violence. Both resources provide very helpful information and updates about the status of important lower court challenges.

Litigation Highlight: Ninth Circuit Upholds Lifetime Ban on Firearm Possession for Man Involuntarily Committed to a Mental Institution Twenty Years Ago

In an opinion issued this past Wednesday, the Ninth Circuit in Mai v. United States rejected an as-applied challenge to 18 U.S.C. § 922(g)(4), which prohibits firearm possession for anyone who “has been committed to any mental institution.” The ATF interprets the provision to cover only those who have been involuntarily committed, but the statutory bar applies to those individuals for life (absent some exceptions). In Mai, the Ninth Circuit joined the Third Circuit in rejecting the Second Amendment challenge, splitting with the Sixth Circuit, which is the only federal court of appeals to have found the statute unconstitutional as applied to a particular case.

SCOTUS Gun Watch – Week of 3/9/20

After Justice Gorsuch wrote separately to express his dissatisfaction with the lower court ruling upholding the recent bump-stock ban, we’ve seen little additional movement this week. No new petitions, by my count, and no action on NYSRPA or the other pending petitions. Some quarters suggest that a longer wait for NYSRPA could indicate greater likelihood of a merits ruling, but it’s hard to say what’s causing the delay at this point. I still have to imagine the Chief is not eager to jump into another controversial issue right before the election if he can avoid it. And here there’s plenty of other gun cases—as show below—that are not at risk of generating mootness concerns to hear next Term.

Weighing Benefits and Burdens for Abortion and Guns Rights

This week, the Supreme Court heard oral argument in June Medical v. Gee. I’ve written before about some of the parallels I’ve perceived in the debates over reproductive rights and firearm rights, and this case raises some new ones for me. As Amy Howe wrote for SCOTUSBlog, the questioning at oral argument focused on whether the law provided any benefits and what burdens it imposed. Might there be some clues in these arguments for how the justices are likely to approach an issue with a much different political valence?

The Second Amendment Doctrine of Dissent

Dissents have a key role to play in law. They allow judges or justices to articulate a view of how the law should be and serve as a signal to scholars, practitioners, and future generations. One thinks, for example, of Holmes’s dissent in Abrams v. United States, which is often viewed as a vehicle for launching the modern understanding of the First Amendment. In the Second Amendment, doctrine has also been formed by the notion of dissent.

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.”

Torts, Insurance, and Mass Shootings

After the Supreme Court refused to halt a state tort claim by Sandy Hook plaintiffs against a gun manufacturer last November, debate over tort liability for gunmakers and sellers is getting a lot of attention, with  experts increasingly weighing in on these types of lawsuits. To help inform the public, the Center is hosting a panel discussion on these issues next Monday, March 2, at the law school.

I also wanted to highlight a recent rundown of these issues in the American Bar Association’s Tort Trial & Insurance Practice Section publication, The Brief. In the article, “Liability for Mass Shootings: Are We at a Turning Point?,” Michael Steinlage lays out the issues facing practitioners, especially insurance lawyers, in these types of lawsuits. From the introduction:

When it comes to mass shootings, insurers historically have relied on the infrequency of such events, favorable liability laws, and their ability to selectively exclude gun-related injuries to justify a hands-off approach to assessing and managing such risks. For those insurers who do underwrite these risks, measuring and pricing the exposure can be difficult. However, with the number of mass shooting incidents increasing and the significant claims and liability that they spawn, recognizing and addressing these types of risks have taken on greater importance. The recent MGM Las Vegas shooting settlement announced in early October—$751 million of which reportedly will be funded by insurance—puts these risks firmly in the category of exposures that companies and insurers can no longer ignore.

It’s worth the read to think about all the practical litigation and legal questions that arise after these horrific tragedies. I suspect, to answer the rhetorical question in the article’s headline, that we are at something of a turning point.

Firearm Policy and Alcohol Abuse

In my forthcoming article, The Complex Interplay Between the Controlled Substances Act and the Gun Control Act, I focus on 18 U.S.C. §922(g)(3), which in its current form incorporates the Controlled Substances Act (CSA) by reference and thereby prohibits violators of the CSA from possessing a firearm. This statutory intersection currently results in more than 14,200 individuals per year failing a background check for gun purchases, and around two hundred prosecutions per year for possession of guns by drug users as the lead charge.  Circuit courts have consistently upheld the constitutionality of §922(g)(3), even in the years after Heller.

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.