1

Launching New Scholarship Interview Series

In addition our recently launched video series on Covid & Guns, the Center is launching this week a new interview series on Second Amendment and firearms law scholarship. We will profile new and forthcoming articles that highlight interesting, complex, or novel issues in the field.

In the first episode, Joseph talks to Eric Ruben, Assistant Professor of Law at SMU Dedman School of Law, about his recent article An Unstable Core: Self-Defense and the Second Amendment, 108 Cal. L. Rev. 63 (2020).

Check out the interview below:




SCOTUS Gun Watch – Week of 5/18/20

Of the 11 Second Amendment cases the Court discussed at conference last Friday, it took action in only 1. The Court GVR’d Beers v. Barr, meaning that it sent the case back to the lower court to dismiss as moot because the challenger in that case—who had been prohibited from possessing firearms under 18 U.S.C. § 922(g)(4) based of a prior involuntary mental health commitment—had since had his rights restored under state law and was thus no longer prohibited. Along with NYSRPA that’s two mootness dismissals on Second Amendment cases in just a month. (The Trump Administration’s actions through ATF were the prime contributor to this case becoming moot, so it may not be explainable in quite the same terms as the NYSRPA mootness issue.)

Beers was the only prohibited person case pending before the Court, so we won’t get any answers on that question (which is one of the few issues that has split the circuits) in the immediate future. The Court has now relisted the remaining 10 cases for conference this Thursday, 5/21. The next order list, where we’ll find out if the Court has decided to hear a new case, is scheduled to come out on Tuesday, 5/26 (because Monday is a holiday).

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Mance v. Barr  5th Cir. 19-Nov-18 Federal ban on out-of-state handgun purchases distributed for

21-May-20 conf.

Rogers v. Grewal  3rd Cir. 20-Dec-18 NJ “may issue” public carry regime distributed for

21-May-20 conf.

Pena v. Horan  9th Cir. 28-Dec-18 California’s Unsafe Handgun Act (microstamping, etc.) distributed for

21-May-20 conf.

Gould v. Lipson  1st Cir. 1-Apr-19 MA “may issue” public carry regime (as implemented locally) distributed for

21-May-20 conf.

Cheeseman v. Polillo N.J. 28-June-19 NJ “may issue” public carry regime distributed for

21-May-20 conf.

Ciolek v. New Jersey N.J. 18-July-19 NJ “may issue” public carry regime distributed for

21-May-20 conf.

Daniel v. Armslist Wisc. 29-July-19 Scope of immunity for gun-broker website under Communications Decency Act Cert Denied
Remington Arms v. Soto Conn. 1-Aug-19 Scope of  gunmaker immunity under the Protection for Lawful Commerce in Arms Act Cert Denied
Guedes v. ATF D.C. Cir. 29-Aug-19 Ban on bump stocks Cert Denied
Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) Cert Denied
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines distributed for

21-May-20 conf.

Malpasso v. Pallozzi 4th Cir. 26-Sep-19 MD “may issue” public carry regime distributed for

21-May-20 conf.

Pennsylvania v. Hicks Penn. 27-Sep-19 How a firearm can factor into reasonable suspicion under the Fourth Amendment Cert Denied
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents distributed for

21-May-20 conf.

Matsura v. United States 9th Cir. 25-Oct-19 Unlawful possession of a firearm by a prohibited person Cert Granted; vacated and remanded
Baker v. City of Trenton, MI 6th Cir. 26-Nov-19 Reasonableness of warrantless search in light of the Second Amendment Cert Denied
Wilson v. Cook County, IL 7th Circ. 27-Nov-19 Assault weapons and high-capacity magazine ban distributed for

21-May-20 conf.

Beers v. Barr 3rd Cir. 9-Jan-20 Unlawful possession of a firearm by a prohibited person (involuntarily committed) Cert Granted; vacated and remanded
Rodriguez v. San Jose 9th Cir. 21-Feb-20 Warrantless search and seizure of firearms under Second & Fourth Amendments resp. requested –due 22-June-20




SCOTUS Gun Watch – Week of 5/11/20

The Court has now distributed the outstanding gun cases for its May 15 conference. That means we have 11 Second Amendment cases being discussed this Friday. We could hear next Monday morning, when the Court releases its order list, if the justices are inclined to take up one or more of these cases. There’s no date by which they need to decide, however, so it’s possible that they relist these cases to be discussed again at later conferences. It’s a waiting game now.

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Mance v. Barr  5th Cir. 19-Nov-18 Federal ban on out-of-state handgun purchases distributed for

15-May-20 conf.

Rogers v. Grewal  3rd Cir. 20-Dec-18 NJ “may issue” public carry regime distributed for

15-May-20 conf.

Pena v. Horan  9th Cir. 28-Dec-18 California’s Unsafe Handgun Act (microstamping, etc.) distributed for

15-May-20 conf.

Gould v. Lipson  1st Cir. 1-Apr-19 MA “may issue” public carry regime (as implemented locally) distributed for

15-May-20 conf.

Cheeseman v. Polillo N.J. 28-June-19 NJ “may issue” public carry regime distributed for

15-May-20 conf.

Ciolek v. New Jersey N.J. 18-July-19 NJ “may issue” public carry regime distributed for

15-May-20 conf.

Daniel v. Armslist Wisc. 29-July-19 Scope of immunity for gun-broker website under Communications Decency Act Cert Denied
Remington Arms v. Soto Conn. 1-Aug-19 Scope of  gunmaker immunity under the Protection for Lawful Commerce in Arms Act Cert Denied
Guedes v. ATF D.C. Cir. 29-Aug-19 Ban on bump stocks Cert Denied
Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) Cert Denied
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines distributed for

15-May-20 conf.

Malpasso v. Pallozzi 4th Cir. 26-Sep-19 MD “may issue” public carry regime distributed for

15-May-20 conf.

Pennsylvania v. Hicks Penn. 27-Sep-19 How a firearm can factor into reasonable suspicion under the Fourth Amendment Cert Denied
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents distributed for

15-May-20 conf.

Matsura v. United States 9th Cir. 25-Oct-19 Unlawful possession of a firearm by a prohibited person Cert Granted; vacated and remanded
Baker v. City of Trenton, MI 6th Cir. 26-Nov-19 Reasonableness of warrantless search in light of the Second Amendment Cert Denied
Wilson v. Cook County, IL 7th Circ. 27-Nov-19 Assault weapons and high-capacity magazine ban distributed for

15-May-20 conf.

Beers v. Barr 3rd Cir. 9-Jan-20 Unlawful possession of a firearm by a prohibited person (involuntarily committed) distributed for

15-May-20 conf.

Rodriguez v. San Jose 9th Cir. 21-Feb-20 Warrantless search and seizure of firearms under Second & Fourth Amendments resp. requested –due 20-May-20



Panel on Corpus Linguistics & the Second Amendment

Last week, Darrell held a virtual version of an event we had planned to conduct in person: Corpus Linguistics, Constitutional Interpretation, and the Right to Keep and Bear Arms.

Here’s the event description: Constitutional interpretation has increasingly turned to history and a close reading of the text to decipher meaning. Scholars have begun mining newly available databases containing thousands of works and millions of words from the founding era to shed light on questions about the typical use of words at the time the Constitution was drafted and ratified–including the Second Amendment’s right “to keep and bear arms.” Darrell Miller hosted a discussion with Duke Law Professor Steve Sachs and Neal Goldfarb, Dean’s Visiting Scholar at Georgetown Law School, about how this work on corpus linguistics can or should inform debates about the meaning of constitutional text and the Second Amendment. The event is co-sponsored by the Center for Firearms Law, the Federalist Society, and the American Constitution Society.

Check out the video below.




Announcing a New Interview Series on Covid & Guns

As we’ve previously talked about on this blog, the coronavirus pandemic has raised several questions about firearms law and the Second Amendment (see here, here, here, and here). To broaden the perspective about these unique circumstances, we’re launching a video series on Covid & Guns. In this special series, we interview experts in different fields to get their views on these issues, including questions about increasing gun sales, the potential for exacerbated gun harms, the possibility of additional benefits to ownership, and more.

We plan to post 1-2 of these videos each week for the next several weeks. They will be available on the Center’s YouTube page, as well as on the Center’s website. And we’ll also be tweeting out clips from our Twitter account (@DukeFirearmsLaw). We hope you’ll follow along!




SCOTUS Gun Watch – Week of 5/4/20

The Court considered the ten pending Second Amendment cases at its conference last Friday, but we did not get any more clarity this morning when it released the orders from that conference. It did not act on any of the pending petitions, instead holding them over to consider at another conference. We’ve also got one more to add to the ready-for-conference list: Beers v. Barr, challenging the mental illness firearm prohibitor, is scheduled for the May 15 conference.

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Mance v. Barr  5th Cir. 19-Nov-18 Federal ban on out-of-state handgun purchases distributed for

1-May-20 conf.

Rogers v. Grewal  3rd Cir. 20-Dec-18 NJ “may issue” public carry regime distributed for

1-May-20 conf.

Pena v. Horan  9th Cir. 28-Dec-18 California’s Unsafe Handgun Act (microstamping, etc.) distributed for

1-May-20 conf.

Gould v. Lipson  1st Cir. 1-Apr-19 MA “may issue” public carry regime (as implemented locally) distributed for

1-May-20 conf.

Cheeseman v. Polillo N.J. 28-June-19 NJ “may issue” public carry regime distributed for

1-May-20 conf.

Ciolek v. New Jersey N.J. 18-July-19 NJ “may issue” public carry regime distributed for

1-May-20 conf.

Daniel v. Armslist Wisc. 29-July-19 Scope of immunity for gun-broker website under Communications Decency Act Cert Denied
Remington Arms v. Soto Conn. 1-Aug-19 Scope of  gunmaker immunity under the Protection for Lawful Commerce in Arms Act Cert Denied
Guedes v. ATF D.C. Cir. 29-Aug-19 Ban on bump stocks Cert Denied
Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) Cert Denied
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines distributed for

1-May-20 conf.

Malpasso v. Pallozzi 4th Cir. 26-Sep-19 MD “may issue” public carry regime distributed for

1-May-20 conf.

Pennsylvania v. Hicks Penn. 27-Sep-19 How a firearm can factor into reasonable suspicion under the Fourth Amendment Cert Denied
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents distributed for

1-May-20 conf.

Matsura v. United States 9th Cir. 25-Oct-19 Unlawful possession of a firearm by a prohibited person Cert Granted; vacated and remanded
Baker v. City of Trenton, MI 6th Cir. 26-Nov-19 Reasonableness of warrantless search in light of the Second Amendment Cert Denied
Wilson v. Cook County, IL 7th Circ. 27-Nov-19 Assault weapons and high-capacity magazine ban distributed for

1-May-20 conf.

Beers v. Barr 3rd Cir. 9-Jan-20 Unlawful possession of a firearm by a prohibited person (involuntarily committed) distributed for

15-May-20 conf.

Rodriguez v. San Jose 9th Cir. 21-Feb-20 Warrantless search and seizure of firearms under Second & Fourth Amendments resp. requested –due 20-May-20



SCOTUS Gun Watch – Week of 4/27/20

The big news this week is that we have the Supreme Court’s opinion in NYSRPA. Check out our quick reactions on the decision and stay tuned for more analysis. In the meantime, the cases the Supreme Court was holding for NYSRPA have now all been distributed for this Friday’s conference. We may know by next week this time what the next major Second Amendment issue before the Court will be. (Mance, the oldest case sitting around, gets a new hearing just over one year since its last.)

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Mance v. Barr  5th Cir. 19-Nov-18 Federal ban on out-of-state handgun purchases distributed for

1-May-20 conf.

Rogers v. Grewal  3rd Cir. 20-Dec-18 NJ “may issue” public carry regime distributed for

1-May-20 conf.

Pena v. Horan  9th Cir. 28-Dec-18 California’s Unsafe Handgun Act (microstamping, etc.) distributed for

1-May-20 conf.

Gould v. Lipson  1st Cir. 1-Apr-19 MA “may issue” public carry regime (as implemented locally) distributed for

1-May-20 conf.

Cheeseman v. Polillo N.J. 28-June-19 NJ “may issue” public carry regime distributed for

1-May-20 conf.

Ciolek v. New Jersey N.J. 18-July-19 NJ “may issue” public carry regime distributed for

1-May-20 conf.

Daniel v. Armslist Wisc. 29-July-19 Scope of immunity for gun-broker website under Communications Decency Act Cert Denied
Remington Arms v. Soto Conn. 1-Aug-19 Scope of  gunmaker immunity under the Protection for Lawful Commerce in Arms Act Cert Denied
Guedes v. ATF D.C. Cir. 29-Aug-19 Ban on bump stocks Cert Denied
Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) Cert Denied
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines distributed for

1-May-20 conf.

Malpasso v. Pallozzi 4th Cir. 26-Sep-19 MD “may issue” public carry regime distributed for

1-May-20 conf.

Pennsylvania v. Hicks Penn. 27-Sep-19 How a firearm can factor into reasonable suspicion under the Fourth Amendment Cert Denied
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents distributed for

1-May-20 conf.

Matsura v. United States 9th Cir. 25-Oct-19 Unlawful possession of a firearm by a prohibited person Cert Granted; vacated and remanded
Baker v. City of Trenton, MI 6th Cir. 26-Nov-19 Reasonableness of warrantless search in light of the Second Amendment Cert Denied
Wilson v. Cook County, IL 7th Circ. 27-Nov-19 Assault weapons and high-capacity magazine ban distributed for

1-May-20 conf.

Beers v. Barr 3rd Cir. 9-Jan-20 Unlawful possession of a firearm by a prohibited person (involuntarily committed) fully briefed

 

Rodriguez v. San Jose 9th Cir. 21-Feb-20 Warrantless search and seizure of firearms under Second & Fourth Amendments resp. requested: due 20-May-20



Litigation Highlight – U.S. v. McGinnis

Earlier this week, in United States v. McGinnis, a Fifth Circuit panel upheld 18 U.S.C. § 922(g)(8) against a Second Amendment challenge. That provision prohibits a person subject to certain types of restraining orders from possessing guns or ammunition while the order is in effect. With this decision, the Fifth joins a chorus of other courts brushing aside facial challenges to the federal prohibitors.

In July 2017, McGinnis was arrested for possessing a firearm while subject to a domestic violence restraining order (one that had been issued 23 months prior to his arrest and was set to expire in 4 weeks). When police searched his backpack after placing him under arrest, they “found a short-barrel AR-15 rifle with a collapsible stock and 3D-printed lower receiver, along with five thirty-round magazines. The backpack also held several envelopes containing documents entitled ‘9/11/2001 list of American Terrorist’ (sic). The list included the names and addresses of several prominent politicians.” The government charged McGinnis with (1) possessing an unregistered short-barrel rifle in violation of the National Firearms Act, and (2) possessing ammunition while subject to a DV protective order. His appeal concerned only the latter.

McGinnis principally argued that § 922(g)(8) is unconstitutional on its face under the Second Amendment. If that sounds like a familiar challenge in the Fifth Circuit, that’s because it is. In 2001, in United States v. Emerson, a panel of the Fifth Circuit became the first federal court of appeals in the country to construe the Second Amendment as protecting an individual right unconnected to militia service. In a tour de force opinion that presaged Justice Scalia’s Heller opinion, Judge Garwood surveyed  history and commentary to conclude that the Second Amendment right belongs to private citizens to exercise for private purposes. That panel, nonetheless, upheld § 922(g)(8) as constitutionally permissible. McGinnis argued that Heller had displaced Emerson’s holding.

Writing for the McGinnis panel, Judge Duncan rejected that notion. He noted that after Heller the federal appellate courts, including the Fifth Circuit, had converged on a two-step framework that asks (1) whether the conduct is within the scope of the right, and then, if so, (2) whether the government can prove the law passes means-end scrutiny. Although the panel was skeptical that Heller undermined the result in Emerson, “in an abundance of caution [it] proceed[ed] to re-analyze the constitutionality of § 922(g)(8) under the two-step [] framework.” In keeping with an increasingly common practice, the court assumed the statute burdened conduct at step one and went straight to step two.

At step two, the court decided that intermediate, not strict, scrutiny applied. Noting that “choosing the appropriate level of scrutiny involves some degree of arbitrariness,” the court found the reasons for strict scrutiny wanting. As it said:

While § 922(g)(8) is broad in that it prohibits possession of all firearms, even those kept in the home for self-defense, it is nevertheless narrow in that it applies only to a discrete class of individuals for limited periods of time. Critically, the discrete class affected by § 922(g)(8) is comprised of individuals who, after an actual hearing with prior notice and an opportunity to participate, have been found by a state court to pose a “real threat or danger of injury to the protected party.” Emerson, 270 F.3d at 262. Put differently, individuals subject to such judicial findings are not the “responsible citizens” protected by the core of the Second Amendment.

(As an aside, it seems to me that the court’s description of those whom a court has determined to be a danger to themselves as not “responsible” may undermine advocates’ efforts to attack extreme risk/red flag laws on Second Amendment grounds. My forthcoming article with Joseph Blocher discusses some of these issues.)

After settling on intermediate scrutiny, the court conducted the tailoring analysis. The court found a reasonable fit between the law and the interest in reducing domestic abuse with firearms because the prohibition is temporary and occurs only after an adversary hearing. (The panel went out of its way to contrast 922(g)(8), which only imposes a temporary disability, with 922(g)(9), which bars those with DV misdemeanor convictions from firearms for life.) The court therefore rejected McGinnis’s facial challenge. It clarified, however, that its holding “does not foreclose the possibility of a successful as-applied challenge to § 922(g)(8).”

In another interesting part of the decision—which Darrell Miller will be blogging about next week—Judge Duncan issued a separate concurring opinion, joined by Judge Jones, calling for rejection of the circuit’s use of the two-part framework in favor of the text, history, and tradition approach. He stated that he would support en banc review “in this case or any appropriate future case” to get there.




Analyzing Ramos Through a Second Amendment Lens

In a fractured decision on Monday in Ramos v. Louisiana, the Supreme Court held that (1) the Sixth Amendment requires unanimous jury verdicts, and (2) that standard applies equally to the states. Reaching this ruling required the Court to discard a 1972 case, Apodaca v. Oregon, in which another fractured Court had concluded that states could diverge from the unanimity requirement. Justice Gorsuch wrote the majority opinion in Ramos, and he was joined in at least part of that opinion by four other justices—Justices Ginsburg, Breyer, Sotomayor, and Kavanaugh. Justice Kavanaugh also wrote separately to expand on his views about stare decisis. Justice Thomas agreed with the result only. Justice Alito dissented, and he was joined by the Chief Justice and Justice Kagan.

In my view, there are some interesting parts of Ramos that both draw from and can inform Second Amendment jurisprudence. Here’s three observations.

 

  1. Justice Gorsuch does not like “interest balancing”

 

One of the reasons Justice Gorsuch provides for pushing aside Apodaca is that the plurality there engaged in a kind of “functionalist approach” that looked to the essential benefits of the jury right and the underlying purposes of that right. After highlighting some of what that approach looked like in Apodaca, Justice Gorsuch asked “Who can profess confidence in a breezy cost-benefit analysis like that?” He then made a broader jurisprudential point—in a portion of the opinion joined by the other four justices—that to me has some strong echoes with Justice Scalia’s rejection of interest balancing in Heller. Here are the two key passages side by side:

What’s remarkable to me is that Justice Breyer—who penned the Heller dissent expressly endorsing interest balancing—joined this part of the decision. In her separate concurrence in Ramos, Justice Sotomayor suggests she was not wholly on board with that part of Justice Gorsuch’s opinion, but she joined that part in full. As she writes, Apodaca was on shaky ground from the start, but “[t]hat was not because of the functionalist analysis of that Court’s plurality: Reasonable minds have disagreed over time—and continue to disagree—about the best mode of constitutional interpretation. That the plurality in Apodaca used different interpretive tools from the majority here is not a reason on its own to discard precedent.” To be sure, she might agree that functionalism should be discarded, and thus agree with Justice Gorsuch about the best way to approach constitutional interpretation, but simply think that that difference is not enough to reject Apodaca. But it’s still striking to see three of the more liberal justices join this part of Justice Gorsuch’s opinion—especially given that Justice Breyer wrote, and Justice Ginsburg joined, the dissenting opinion in Heller that Justice Scalia criticized in very similar terms. At the same time, because these justices agreed with the outcome, perhaps they thought this part inconsequential enough not to further divide the opinions in the case.

 

  1. The reliance interests of Americans matter in the stare decisis analysis

 

Another parallel with Heller is the majority’s rejection of precedent on the ground that the prior decision got the constitutional question wrong (or was at least read that way by succeeding judges). And in both cases, the majority invoked the reliance interests of ordinary Americans in its reasons to overturn precedent. As Justice Gorsuch says, “[i]n its valiant search for reliance interests, the dissent somehow misses maybe the most important one: the reliance interests of the American people.” For him, “the interest we all share in the preservation of our constitutionally promised liberties” is a reliance interest that must be taken into account.

In Heller, Justice Scalia similarly distinguished away United States v. Miller, in what the dissent considered to be a tacit overruling. Although Justice Scalia rejected that characterization, he did reckon with the argument that lower courts, at least, had read Miller in a way the dissent the suggested. Those courts’ “erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms.” Here too, ordinary Americans rely on accurate constitutional interpretation.

In both these contexts, it seems fair to ask: how are those reliance interests? Of course the American people have a strong interest in constitutional questions being rightly decided, but those aren’t interests they built up by relying on what the Court calls an incorrect opinion.

 

  1. Justice Kavanaugh’s thoughts on stare decisis could give a roadmap for advocates seeking to overturn Heller

 

Justice Kavanaugh’s thoughts on stare decisis are being closely watched, in part because he may be a pivotal vote to overturn Roe/Casey. But his thoughts on stare decisis might also prove informative for those advocates seeking to overturn Heller. Justice Kavanaugh provides three metrics to determine whether an opinion should be overruled.

  • First, is the prior decision not just wrong, but grievously or egregiously wrong?”
  • Second, has the prior decision caused significant negative jurisprudential or real-world consequences?”
  • Third, would overruling the prior decision unduly upset reliance interests?”

Of course, opinions are likely to differ on all three of those questions. But there’s at least a non-frivolous argument that determined advocates could make on each. As to the first question, Heller has faced mounting criticism from historians and linguists about the accuracy of its conclusions on original public meaning, as my colleague Darrell Miller has chronicled here.

As to the second question, there’s still a fierce empirical debate on the actual effect of gun laws, but one might point to laws struck down in Chicago and D.C. (other than the handgun bans) as negative real-world effects either because they lead to more gun injuries or because they take decisionmaking authority away from the political branches that (assuming point one above) should be making those decisions. Or one could point to the armed rallies and protests, inspired by the Second Amendment, that have the potential to chill First Amendment activity. Perhaps these sociological consequences are part of the inquiry into whether the decision proves administrable.

As to the third question, it’s not clear to me how to flesh out reliance interests on Heller. States by and large protect the arms right in their own constitutions, and a long and deep gun culture existed in the U.S. prior to 2008. There was certainly not a strong political appetite for prohibitory gun laws when states had the theoretical ability to pass them. Plus, there’s not a single person born after Heller was decided who can legally purchase a handgun, so it’s not as if there’s a large reliance interest there. On the other hand, both Ramos and Heller acknowledge that the views of Americans are a part of reliance. And in Casey too the Court took this interest into account: “The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed.”

Just to be clear, I don’t think Heller is going anywhere soon. But given what seems like a diminishing reluctance to overturn past decisions, it makes sense to look at what advocates would need to do to convince skeptical justices.




SCOTUS Gun Watch – Week of 4/20/20

We continue to have quiet on the Court’s gun docket, but it did issue three other opinions this week and announced that it may issue more on Thursday, so the Court’s active.

Today the Court also asked for a response in Rodriguez v. San Jose, which challenges a warrantless search/seizure of firearms. “A Supreme Court ‘call for response’ signals that someone at the high court is interested in a case, and Bloomberg Law research shows that it slightly increases the likelihood that the case will get granted.” Although the odds of a cert grant are always low, this research showed that cert is 5 times more likely to be granted after a call for response. We’ll be watching that one, which has been distributed for the April 24 conference, but will likely be held for the response due next month.

 

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Mance v. Barr  5th Cir. 19-Nov-18 Federal ban on out-of-state handgun purchases distributed

12-Apr-19 conf.

Rogers v. Grewal  3rd Cir. 20-Dec-18 NJ “may issue” public carry regime distributed

23-May-19 conf.

Pena v. Horan  9th Cir. 28-Dec-18 California’s Unsafe Handgun Act (microstamping, etc.) distributed

12-Apr-19 conf.

Gould v. Lipson  1st Cir. 1-Apr-19 MA “may issue” public carry regime (as implemented locally) distributed

6-June-19 conf.

Cheeseman v. Polillo N.J. 28-June-19 NJ “may issue” public carry regime distributed

18-Oct-19 conf.

Ciolek v. New Jersey N.J. 18-July-19 NJ “may issue” public carry regime distributed

1-Oct-19 conf.

Daniel v. Armslist Wisc. 29-July-19 Scope of immunity for gun-broker website under Communications Decency Act Cert Denied
Remington Arms v. Soto Conn. 1-Aug-19 Scope of  gunmaker immunity under the Protection for Lawful Commerce in Arms Act Cert Denied
Guedes v. ATF D.C. Cir. 29-Aug-19 Ban on bump stocks Cert Denied
Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) Cert Denied
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines distributed

10-Jan-20 conf.

Malpasso v. Pallozzi 4th Cir. 26-Sep-19 MD “may issue” public carry regime distributed

24-Jan-20 conf.

Pennsylvania v. Hicks Penn. 27-Sep-19 How a firearm can factor into reasonable suspicion under the Fourth Amendment Cert Denied
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents distributed

21-Feb-20 conf.

Matsura v. United States 9th Cir. 25-Oct-19 Unlawful possession of a firearm by a prohibited person Cert Granted; vacated and remanded
Baker v. City of Trenton, MI 6th Cir. 26-Nov-19 Reasonableness of warrantless search in light of the Second Amendment Cert Denied
Wilson v. Cook County, IL 7th Circ. 27-Nov-19 Assault weapons and high-capacity magazine ban distributed

6-Mar-20 conf.

Beers v. Barr 3rd Cir. 9-Jan-20 Unlawful possession of a firearm by a prohibited person (involuntarily committed) reply due @

14-Apr-20

 

Rodriguez v. San Jose 9th Cir. 21-Feb-20 Warrantless search and seizure of firearms under Second & Fourth Amendments resp. requested –due 20-May-20