Reading the Second Amendment SCOTUS Tea Leaves

  • Date:
  • December 16, 2020

On Monday, the Supreme Court denied cert in Torres v. United States, the first case that presented a direct Second Amendment issue since Justice Amy Coney Barrett joined the Court. Torres raised the question of whether 18 U.S.C. § 922(g)(1)—which categorically forbids those with felony convictions from possessing firearms—can be challenged on an as-applied basis. We know that Justice Barrett believes it can. She concluded as a circuit judge, in Kanter v. Barr, that not only can courts review as-applied challenges, but that the plaintiff in that case succeeded in establishing the unconstitutionality of the law as to him. In doing so, she invoked a “dangerousness” principle that limits the scope of constitutionally permissible legislative authority to disarm classes of people. Other courts and scholars have argued that virtue, not dangerousness, is the touchstone. The Third Circuit recently wrestled with this question of the justification for felon disarmament, so it does not seem like the issue is going away.

And yet, the Supreme Court has continuously declined to hear these cases. Justice Thomas repeatedly, joined occasionally by Justices Gorsuch and Kavanaugh, has dissented from the Court’s refusal to hear a Second Amendment challenge, but I am not aware of any dissent of his from a case challenging the felon prohibitor. This past summer, after the majority dismissed New York Rifle and Pistol Association v. City of New York on mootness grounds, the Court considered 10 other Second Amendment challenges it had been holding for that decision. It denied them all, with Justice Thomas, joined in part by Justice Kavanaugh, dissenting in only one case concerning public carry restrictions. In fact, according to my review, of the several Second Amendment cert petitions filed between the time the Court granted cert in NYSRPA and the time it issued its decision, there was only one that it did not hold: Medina v. Barr. The Court denied cert outright even while it had NYSRPA under review. That case, like Kanter and Torres, was an as-applied challenge to 922(g)(1). In my view, these are some strong hints that the Supreme Court is not eager to wade back into the Second Amendment morass with a prohibited person case.

I have seen some speculation, however, that Torres was an especially unattractive candidate because the offenses for which Torres was convicted were pretty dangerous—two felony DUI offenses, including one while his infant was in the car. In addition, another difference with many of the other as-applied challenges is that Torres arose in the context of a criminal prosecution for violating 922(g)(1). He did not sue the Attorney General for a determination that the law was unconstitutional as applied to him before he possessed a weapon, as had Kanter and Medina, but instead raised his constitutional challenge in response to being caught with the gun.

These two factors are significant, and I suspect that several of the conservative justices, including Justices Alito and Thomas, are not eager to side with a criminal defendant. That said, I don’t think these two factors explain the whole story of the cert denial. After all, Medina was a civil challenge and Medina’s offense (mortgage fraud) was basically the same as the one Justice Barrett rejected as grounds for disarmament in Kanter (mail fraud). (True, Justice Barrett was not on the Court yet, but the justices did not even hold the Medina case pending their decision in NYSRPA and no justices registered disagreement with the denial of cert.) Plus, the D.C. Circuit decided Medina under step one of the two-part framework, ruling that Medina was outside the scope of the Second Amendment altogether, and strongly suggested that nearly everyone with a criminal conviction was too. That’s an even more restrictive position than the one taken by the Seventh Circuit majority in Kanter that Justice Barrett dissented from.

We may not have to wait long to see whether those factors make a different because the Court has another cert petition raising these questions coming its way. In Holloway v. Attorney General, the petitioner raises his claim in a civil setting, arguing that the felon ban is unconstitutional in his situation. (His misdemeanor DUI offense may still make him a less ideal plaintiff than someone like Medina, Kanter, or even Lisa Folajtar, whose own cert petition arising from her tax fraud conviction might be heading the Court’s way in the coming months.)

My view is that the Court is unlikely to use these cases as the vehicle to re-enter the Second Amendment space. With a number of conceptual and substantive issues outstanding, I suspect the Court will want to take a case to clarify those issues that will create as few immediate ripples as possible. As we know, the Court is often receptive to “floodgates” arguments, and recognizing as-applied challenges to the felon prohibitor would surely create a tsunami of litigation around the country.

If that’s right, then we may be waiting a while to see how much tinkering the new Court wants to do with existing Second Amendment doctrine. No other direct Second Amendment cert petitions have even been filed yet, so we are at least a few months away from having a fully briefed case the Court could consider at conference. And, depending on the timing, that may even push arguments and an eventual decision out to next term.