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The Next Big Second Amendment Case?

By on February 19, 2021 Categories: , ,

Today, at its weekly conference, the Supreme Court will consider whether to grant review in McGinnis v. United States. In the case, Eric McGinnis challenges his conviction under 18 U.S.C. § 922(g)(8) for possessing a firearm while subject to a protective order. Both Darrell and I have previously blogged about the case after the Fifth Circuit upheld the conviction. What makes the case most interesting is that more than the challenge to 922(g)(8), McGinnis challenges the methodological framework by which the Fifth Circuit upheld his conviction.

In the Fifth Circuit, the panel applied the traditional two-part framework for deciding Second Amendment challenges that governs in all the federal courts of appeals to have considered the methodological question. Under that test, the panel first assumed that 922(g)(8) burdened conduct protected under the Second Amendment, and then at the second stage applied intermediate scrutiny. It upheld the law as closely related to the government’s interest in preventing gun violence. What is more noteworthy than that holding—with which every circuit court to consider the question has agreed—is Judge Duncan’s separate concurrence, which was joined by Judge Jones. In that concurrence, he questioned the two-step framework and advocated “retir[ing] this framework in favor of an approach focused on the Second Amendment’s text and history.” He indicated he’d be happy to do that en banc in McGinnis or any other case. The Fifth Circuit did not take the case en banc (and it appears no active judge even sought a vote on rehearing en banc).

McGinnis framed his cert petition around this methodological issue. After all, there’s no circuit split on whether 922(g)(8) is constitutional, and there aren’t many dissenting voices on that question either. But with respect to methodology, judges are split. (Circuits, to reiterate, are not.) Many conservative judges have come out strongly in favor of the text, history, and tradition (THT) approach that then-Judge Kavanaugh announced while he was serving on the D.C. Circuit. Justice Barrett wrote a THT-friendly opinion—without expressly endorsing or rejecting it—while a judge on the Seventh Circuit. It’s likely that at least one more of the conservative justices would like that test to govern Second Amendment challenges.

To my mind, the petition has two strikes against it. As I’ve suggested before, I think the Court is less likely to take a direct criminal appeal like this because the petitioner tends to be less sympathetic. In addition, unlike with 922(g)(1), courts aren’t having much trouble upholding convictions under 922(g)(8). But in some ways, those strikes could also be counted in the case’s favor. The Court could use the case to pull a Marbury v. Madison—issue a major ruling that redraws legal boundaries but deny relief in the case at hand. In fact, that was what the Fifth Circuit did with the Second Amendment in 2001 in a case called United States v. Emerson. The factual and legal setting there were very similar to McGinnis. A man challenged on direct appeal his conviction for violating 922(g)(8). But the main difference was that in 2001 every court of appeals in the country that had examined a Second Amendment challenge rejected it on the grounds that the Constitution did not protect private arms possession for purposes unrelated to militia service. Emerson—in a foreshadow of Heller—was the first appellate court to hold otherwise in an opinion that in the end upheld the man’s conviction under 922(g)(8).

So if a majority of the justices want to adopt the methodological framework urged by conservative judges, commentators, and advocates without striking down a popular and universally upheld legal prohibition, McGinnis might be a decent vehicle. Since the justices are meeting this morning, there’s a chance we could hear later in the day whether they will hear the case. We may also have to wait until Monday’s order list to see what the Court decides to do. But either way, we’ll know soon enough.