SCOTUS Gun Watch - Week of 6/12/23

As we approach the end of the 2022-2023 Supreme Court Term, public attention is primarily focused on the decisions in cases such as Students for Fair Admissions (challenges to the consideration of race in college admissions under the Civil Rights Act and the Equal Protection Clause), 303 Creative (a case implicating religious freedom under the First Amendment and state LGBTQ anti-discrimination laws), Moore v. Harper (where North Carolina's Republican legislators have asked the Court to adopt the "independent state legislature" theory for matters related to federal elections), and Biden v. Nebraska (a legal challenge to the Biden administration's student loan forgiveness plan).  Decisions in each case will be released in the coming weeks—there is no set deadline, but the Court releases all opinions and recesses for the summer by the first week of July.  

In the Second Amendment arena, however, the real action will occur at the Supreme Court's final conference of the term on June 22 (with an orders list expected to follow the next Monday, June 26).  Both Rahimi and Seekins have been distributed for consideration at the June 22 conference.  On June 6, reply briefs in each case were filed.  In Rahimi, the government spends much of its reply brief responding to Rahimi's argument that review is premature and unwarranted.  The government argues that "courts of appeals have extensively debated which categories of persons the government may disarm consistent with the history of the Second Amendment" since Bruen was issued (citing the recent en banc Third Circuit decision in Range granting an as-applied challenge to 922(g)(1)), that no further "percolation" is necessary, and that "[i]t is not uncommon for the Court to address the application of one of its decisions" with a two-term gap (citing the time gap between Heller and McDonald).  The government also asserts that any commerce clause argument cannot be used to sustain the Fifth Circuit's decision because the issue was not properly raised below and Rahimi conceded that the weapon he possessed had moved in interstate commerce.

In Seekins, which squarely presents the commerce clause question, the petitioner's reply argues that “[i]t’s hard to imagine a more local crime” than Mr. Seekins' possession of a shotgun shell taken from a dumpster, and that "[t]he Court should review whether the federal government can criminalize the mere possession of any object that once traveled in interstate commerce."  Seekins further contends that the conduct "was not part of an economic ‘class of activities’ that have a substantial effect on interstate commerce" and that "the challenge of proving that particular conduct falls within Congress’s power does not justify expanding that power beyond its proper bounds." 

As I've written previously, I believe the Court is likely to grant cert in Rahimi—both because the decision implicates the facial constitutionality of a federal criminal statute and due to the growing (and divergent) appellate case law on the question of which groups may be categorically disarmed under a historical analysis.  I would be surprised to see a grant in Seekins, where the petitioner appears to advocate for a major change in commerce clause jurisprudence that would have far-reaching impacts.  With that said, I think we can expect a spirited dissenting opinion from at least Justice Thomas (who has forcefully articulated his support for a return to the more narrow "original understanding" of the commerce clause power in cases such as Morrison and Gonzales). 

Finally, in Garland v. Cargill, the respondent filed his response to the attorney general's cert petition on June 7.  Interestingly, Cargill urges the Court to grant certiorari despite prevailing below.  Cargill references the sharp divide among appellate courts over the legality ATF's bump-stock ban and the fact that the question presented "is an issue of statutory construction that affects many Americans."  Cargill also asks the Court to expand the scope of review to include whether ATF's rule violates the rule of lenity.  While the response seems to moderately increase the likelihood of a cert grant, it doesn't appear that Cargill will be distributed for conference this term (which likely means the Court will consider the petition at its "Long Conference" in September).  

As we await cert decisions in Rahimi and Seekins, we will be running a follow-up post on the blog later this week with a summary of the cert-stage amicus briefs filed in Rahimi.  

Petitions Pending

Petitions Granted and Argued

Petitions Disposed