SCOTUS Watch 2/2 & Other Developments

It’s February and we’re still awaiting orders on the Large Capacity Magazine, AR-15, and public transit cases (read our summaries of those cases here)—all of which have been relisted for conference several times. On Monday, January 26, the Court denied virtually all pending petitions for certiorari challenging the federal law banning felon possession of firearms (18 U.S.C. § 922(g)(1)) except for those pending in Thompson v. United States & Vincent v. Bondi. At this point, we don’t know for certain what that means, but it could be that one or some of the justices is writing a dissent from denial of certiorari.

The Court received another Second Amendment-related petition for certiorari this week in LaFave v. Fairfax County, Va. It is on appeal from the U.S. Court of Appeals for the Fourth Circuit. Petitioners are challenging Fairfax County’s prohibition on firearms in public parks. The question presented is “The question presented is whether the Fourth Circuit properly rejected Petitioners’ challenge to Fairfax County’s ban on carrying firearms in the hundreds of public parks operated by the County because four of those parks host preschool programs.” Petitioners are represented by Cooper & Kirk, frequent litigators in the Second Amendment space.

In Mancuso v. New York, No. 25-536, the state filed its brief in opposition to the petition for certiorari. In Mancuso, petitioner is challenging New York felon-in-possession statutes, New York Penal Law §§ 265.03(3) and 265.02(1), as violating the Second Amendment. The case is on appeal from the highest court of review in New York State.

We also want to highlight an essay, titled “Second Amendment jurisprudence is a mess,” written by esteemed constitutional law scholar Erwin Chemerinsky; the essay was posted to SCOTUSBlog. Professor Chemerinsky writes,

There are two cases on the docket this term regarding gun laws and they likely will exacerbate, not clear up, the confusion. The court could – and should – solve much of this problem by treating the Second Amendment like other rights in the Constitution.

He writes,

Bruen assumes that the absence of a particular type of regulation historically means that the Second Amendment was meant to prohibit it. The decision took for granted that history provided an answer, when in reality historical practices often were divergent and not useful in analyzing modern weapons and contemporary needs for regulation. The court was also unclear about what history was relevant and how it was to be determined.” He writes further, “Bruen unleashed challenges to every type of gun regulation. There are likely hundreds of cases just about the constitutionality of federal and state laws that prevent ex-felons from having guns. And, predictably, the lower courts have struggled with the myriad of gun issues in terms of applying the court’s historical approach. As Jackson observed about the post-Bruen landscape, these courts ‘have come to conflicting conclusions on virtually every consequential Second Amendment issue to come before them.’”

I agree with Professor Chemerinsky that (a) lower courts are struggling to consistently and predictably apply the history-and-tradition test enunciated in Bruen, and (b) the two cases to-be-decided this Term are unlikely to offer any clarity.  I also agree with Chemerinsky that the Court’s historical practice test is fundamentally flawed—particularly that it rests on untenable assumptions about what legislatures did—and didn’t do—and their reasons for doing them.  (For instance, just because a legislature didn’t regulate a certain issue does not mean that it did so because they believed it was prohibited by the Second Amendment.) I also agree that judging the constitutionality of modern laws against historical practice is incompatible with the methodologies we use to evaluate laws in other constitutional contexts.  To bring Second Amendment jurisprudence in line with other widely used constitutional practice, Chemerinsky proposes we return to the tiers of scrutiny analysis. We use the tiers of scrutiny in challenges under the First Amendment, Equal Protection, and substantive due process, to name a few.  And in large part, they have worked well. Courts understand the test and it is, for the most part, applied predictably, which is certainly more than we can say for Bruen.

But I think it’s unlikely that we return to the levels of scrutiny analysis (at least in the Second Amendment context) anytime soon. Justice Thomas in particular has made no secret of his disdain for the tiers of scrutiny, calling them “demonstrably erroneous” “made-up tests”.  The justices who would favor them are unlikely to rouse enough support to revive them and overturn Bruen.  Nonetheless, I agree with Professor Chemerinsky that it is important for us to think about the future of Second Amendment jurisprudence when it is no longer beholden to the dead hand of history.