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Center Media Roundup

This past week was a whirlwind for the Center. Center leadership talked with more than a dozen media outlets about the Supreme Court’s first substantive return to the Second Amendment in nearly a decade. Here’s a roundup of the Center’s commentary this past week on NYSRPA:

Miller discusses gun case before the Supreme Court and the constitutional right to transport a gun | National Constitution Center – December 5, 2019

Blocher appears as full-hour guest discussing yesterday’s oral arguments in gun law case before the Supreme Court | WBUR’s On Point – December 3, 2019

Charles ’13: Adopting the “historical analog” test to determine the constitutionality of gun laws could severely impact the current regulatory landscape | Medill News Service – December 3, 2019

Blocher says Supreme Court’s decision in “outlier” case could constrict the freedom of localities to craft their own gun regulations | Route Fifty – December 2, 2019

Blocher: A new test for evaluating the constitutionality of gun laws could have far-reaching implications | NPR’s Weekend All Things Considered – December 2, 2019

Fate of two-step constitutionality test for gun regulations is in the hands of the Supreme Court, Blocher says | The Hill – December 2, 2019

Blocher: Second Amendment law would be transformed by a shift to evaluating the constitutionality of gun laws based on text, history, and tradition | MSNBC with Ali Velshi – December 2, 2019

Blocher scholarship: Challenges to gun restrictions post-Heller have largely failed due to weak claims, not judicial resistance | The New York Times – December 2, 2019

Study co-authored by Blocher is cited: Lower courts have rejected challenges to gun restrictions in more than 90% of post-Heller rulings | The Wall Street Journal – December 2, 2019

SCOTUS may use today’s Second Amendment case to clarify how courts should evaluate the constitutionality of gun laws, Blocher says | Agence France Presse – December 2, 2019

Miller says new conservative justices “quite likely” to grant cert to cases that would help clarify the scope and terms of the Second Amendment post-Heller; states’ carry laws at center of litigation | KPCC Public Radio (Calif) – December 2, 2019

Blocher says the stakes are “potentially huge” as Supreme Court hears challenge to NY gun restriction | USA Today – December 1, 2019

Blocher: SCOTUS should dismiss as moot the legal challenge to a New York gun ban; Court will hear case Monday | The Crime Report – November 29, 2019




The “Text, History, and Tradition” Alternative

I’ve written previously about the surprising agreement among courts of appeals interpreting and applying the Second Amendment. They all agree, for instance, that the standard two-part framework is the best way to analyze Second Amendment challenges. Under that framework, the first question is whether the challenged law burdens conduct protected by the Constitution; if it does, the second question is whether the law passes some form of heightened scrutiny. But there’s an alternative test that has been strongly urged by gun-rights advocates and some dissenting judges. That test looks solely to “text, history, and tradition” to assess compliance with the Second Amendment. This debate peaked through the mootness fog during this week’s NYSRPA arguments.

As I observed earlier this week, Justice Alito was the first justice to bring up the question of Second Amendment methodology in oral arguments. But before he even got there—indeed before a single justice asked any question—Paul Clement, the attorney for the challengers, led with this opening line: “Text, history, and tradition all make clear that New York City’s restrictive premises license and accompanying transport ban are unconstitutional.” Clement argued that the Supreme Court should “send a very important signal to the lower courts” by stating “that when a regulation like this is inconsistent with text and has no analogue in history or tradition, it is unconstitutional, full stop.” Under his view of the THT test, historical or traditional pedigree is both a necessary and sufficient condition for constitutionality. Pushing the THT test in place of the two-part framework has been a key effort of gun-rights advocates, as illustrated in amicus briefs by the NRA and other groups. Jeff Wall, arguing on behalf of the government in NYSRPA, also urged such a test.

These litigants are not the only ones in favor of the THT alternative. In Heller II, a challenge to D.C. laws banning assault weapons and requiring firearm registration, then-Judge Kavanaugh also argued forcefully for the THT test. In a 52-page dissent, Kavanaugh argued that Heller mandates that judges look only to text, history, and tradition to determine whether a regulation comports with the Second Amendment. He rejected the majority’s invocation of the normal means-end scrutiny as a type of forbidden “interest balancing.” Just like the version Clement argued for in NYSRPA, Justice Kavanaugh’s makes historical or traditional roots both a necessary and sufficient condition. In his words:

Heller was up-front about the role of text, history, and tradition in Second Amendment analysis – and about the absence of a role for judicial interest balancing or assessment of costs and benefits of gun regulations. Gun bans and gun regulations that are longstanding – or, put another way, sufficiently rooted in text, history, and tradition – are consistent with the Second Amendment individual right. Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history, and tradition are not consistent with the Second Amendment individual right.

Other judges have, also in dissenting opinions, echoed Justice Kavanaugh’s view. This version of THT requires a historical tradition before a court can uphold regulations. But what about new regulations that respond to modern concerns? For those, according to Justice Kavanaugh, we have to “reason by analogy,” though he concedes that “applying constitutional principles to novel modern conditions can be difficult and leave close questions at the margins.” As Chief Justice Roberts said during oral arguments in District of Columbia v. Heller in 2008, “we are talking about lineal descendants of the arms but presumably there are lineal descendants of the restrictions as well.” One concern for this view, when dealing with the difficulty of analogical reasoning across technical subjects, is deciding how certain one must be about the analogy before striking down democratically-enacted legislation.

But this is not the only way to conceptualize a test that looks to text, history, and tradition for guidance. The Center’s own Darrell Miller has argued that the Seventh Amendment’s historical framework can provide a useful guide for courts confronting Second Amendment challenges. In the Seventh Amendment context, Miller notes, the Supreme Court “has converged on a historical test that attempts to remain true to the text, history, and tradition of the Seventh Amendment, but is supple enough to address the demands of a twenty-first-century judicial system.” Unlike the tests proposed by dissenting judges and gun-rights advocates, the Court’s Seventh Amendment case law has already grappled with complex but inevitable questions like, “Whose history is preserved in the Seventh Amendment? How much history? And what does a court do with conflicting or indeterminate history?” Miller describes how the Court’s historical test for the Seventh Amendment performs similar functions to those used in scrutiny analysis:

First, history serves as a familiar boundary-setting device. It guides judicial discretion as to which cases fall within the scope of the Seventh Amendment and which cases do not. Second, history serves a tailoring function. It dictates the extent to which legislatures or courts may alter both the form and the function of the jury that the Seventh Amendment guarantees. Procedural innovations that preserve the fundamentals of the jury-trial right are constitutional; procedural innovations that destroy the fundamentals are not.

Miller notes that flexibility and not rigidity has been the hallmark of the historical test in the Seventh Amendment. In assessing whether the fundamentals are preserved, the Court looks to things like the purposes for which the Founders protected the jury right and the functional considerations of having a judge versus jury decide an issue.

Drawing on the Court’s rich experience with the Seventh Amendment, Miller proposes a possible historical test for the Second:

First, does the asserted right to “keep” or “bear” or to a particular “arm” have a clear or arguable historical analogue? If it does, then it can be said to implicate the Second Amendment. If it does not, there is no Second Amendment right. Assuming the right asserted has a clear or colorable historical analogue, the second part of the test asks whether the regulation “infringes” upon the right to keep and bear arms. Here, infringement means something similar to a failure to preserve in the Seventh Amendment context, i.e., a law that regulates keeping or bearing an arm so thoroughly as to destroy the fundamental nature of the right. Regulations that have precise common law or historical antecedents or analogues do not infringe upon the right; newer regulations grounded in precedent or functional considerations do not infringe upon the right so long as they retain the Second Amendment right in its essential features.

Notice that, in this version of the test, historical or traditional pedigree is a sufficient reason to uphold a regulation, but it is not a necessary one. New innovations can occur in areas affecting constitutional rights—like the right to a civil jury, or the right to keep and bear arms—and that novelty alone does not doom the regulations. Even where no analogue exists, states are free to experiment so long as the fundamental aspects of the right are preserved (i.e., not infringed). This is where Miller’s historical test and the one advocated by Clement and the gun-rights advocates splits apart.

If the Supreme Court does eventually adopt a test focused on text, history, and tradition, it ought to at least stay consistent with how it has employed that type of analysis for other constitutional rights. After all, as Justice Alito said in McDonald—and Justice Sotomayor echoed in the NYSRPA oral arguments—the Second Amendment should not be “subject to an entirely different body of rules than the other Bill of Rights guarantees.” But the gun-rights advocates’ version of the THT test would do just that. It would turn the Second Amendment, in Timothy Zick’s words, into “a kind of super-right, one defined in absolute terms and buttressed by the most rigid standards.”




SCOTUS Gun Watch, Episode 7

The big recent news from the Supreme Court on guns is, of course, the oral argument in NYSRPA that happened on Monday morning. We’ve had some initial analysis of that argument, and will have some more later on. For now, I’m updating the SCOTUS Gun Watch with other pending petitions and a new one. As I’ve noted before, if the Court does dismiss NYSPRA as moot, that decision makes it all the more likely that one of the petitions below will be granted.

Of interest on those, Paul Clement, who represented NYSRPA and argued on Monday, also represents the challengers in Rogers v. Grewal.

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 resp. due 4-Dec-19
Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) distributed for 6-Dec-19 conf.
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines resp. due 9-Dec-19
Malpasso v. Hamilton 4th Cir. 26-Sep-19 MD “may issue” public carry regime resp. due 18-Dec-19
Pennsylvania v. Hicks Penn. 27-Sep-19 How a firearm can factor into reasonable suspicion under the Fourth Amendment distributed for 6-Dec-19 conf.
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents resp. due 13-Jan-20
Matsura v. United States 9th Cir. 25-Oct-19 Unlawful possession of a firearm by a prohibited person resp. due 30-Dec-19
Baker v. City of Trenton, MI 6th Cir. 26-Nov-19 Reasonableness of warrantless search in light of the Second Amendment resp. due 2-Jan-20



Quick Reactions from NYSRPA Oral Arguments

After reading the NYSRPA transcript and hearing the insights from numerous veteran Court watchers, I have some initial reactions to oral argument today.

First, as expected, the overwhelming majority of time during argument was spent on the question of mootness. That could have been a function of the vociferousness with which the left-leaning justices attacked the challengers’ position—with Justice Sotomayor taking an especially active role. At one point she told the challengers’ lawyer that “what you’re asking us to do is to take a case in which the other side has thrown in the towel and completely given you every single thing you demanded in your complaint for relief, and you’re asking us to opine on a law that’s not on the books anymore.” Justice Gorsuch and Justice Alito, on the other hand, appeared to think the case still presented a live controversy. They suggested there was controversy over the new City regulation, which permits “continuous and uninterrupted” travel to the places the challengers sought to go. Justice Kavanaugh did not ask a single question, and the Chief Justice didn’t necessarily indicate which way he was leaning. He did, however, seek assurances from the City that nothing from the old law would have any adverse consequences on petitioners.

Second, there does seem to be an appetite among some conservative justices for a rethinking of the methodology used for deciding Second Amendment cases. Justice Alito, for example, first broached the question in the second half of the argument: “what methodology should the courts use in approaching Second Amendment questions?” Counsel for the City argued that text, history, and tradition are relevant but because they do not often speak with one voice they will likely not be conclusive. Notably, the text, history, and tradition test is the one Justice Kavanaugh himself advocated when he was on the court of appeals. Under his formulation of that test,

Gun bans and gun regulations that are longstanding – or, put another way, sufficiently rooted in text, history, and tradition – are consistent with the Second Amendment individual right. Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history, and tradition are not consistent with the Second Amendment individual right.

There’s little reason to think he’s changed his mind in the intervening years since he assumed his high court seat.

We’ll have more coverage of the case this week and next as we further digest the transcript more fully. It’s also worth noting that, whatever happens with NYSRPA, there are at least half a dozen cert petitions squarely presenting Second Amendment questions waiting on action from the Court. A dismissal of NYSRPA on mootness grounds certainly makes it more likely the Supreme Court will take one of those other cases.




What to Watch: New York State Rifle & Pistol Association vs. City of New York

This morning, the Supreme Court will hear argument in NYSRPA, the Second Amendment challenge to a now-repealed New York City rule that prohibited individuals holding a premises license from taking their gun outside of the City (with limited exceptions). It is the first oral argument in a Second Amendment case since March 2, 2010. When NYSRPA granted in January, there was a debate about whether the Court took the case to strike down an outlier law—much like the ones it struck down in Heller and McDonald—or to make a broader ruling on the scope of the Second Amendment and the methodology lower courts should use moving forward. But things changed this summer when the City repealed the challenged rule; New York State, which is not a party, also changed the law so that the City could not reenact the challenged rule even if it wanted to. The debate changed from one about the breadth of the potential ruling to one about whether there would (or should) be a Second Amendment ruling at all.

In any event, here’s what I’m watching for in the arguments today:

  • How quickly the questioning turns to mootness and how focused the justices appear to be on that issue as opposed to the merits
  • Whether the justices press the Solicitor General on the theory that the mere possibility of nominal damages suffices to keep a case from mootness—and on the SG’s rejection of petitioners’ other theories for why the controversy remains live
  • Whether the justices look like they agree with the petitioners’ view that there’s something suspect about statutory changes if such changes seem designed to moot a case
  • Whether the justices appear to believe there’s a widespread problem with how lower courts are interpreting and applying Heller or whether the now repealed law (and lower court ruling) is an outlier
  • What kind of purchase the text, history, and tradition test appears to get from the justices
  • What signals we get from the new justices who were not around when Heller and McDonald were decided about their views of the scope of the Second Amendment



SCOTUS Gun Watch, Episode 6

We’re just one week out from oral arguments in NYSRPA! And, to keep the drama high, briefing just concluded for good this past week. The City and the petitioners filed their responses to the SG’s letter brief on mootness. Next week, in addition to the normal SCOTUS Gun Watch, we’ll be doing some coverage of the arguments on Monday and throughout the week. We’ll also be joined by Nina Totenberg on Thursday, December 12th in Washington, D.C. for a discussion about the Court’s arguments and some help reading the tea leaves. (Sign up here!)

There were no new firearms law cert petitions filed this week, but some of the briefing has concluded in pending cases, teeing them up for conference scheduling. The biggest news out of today’s conference is the Supreme Court’s denial of the petition in Daniel v. Armslist, which sought to impose liability on the gun broker website for facilitating sale to a prohibited person.

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 resp. due 4-Dec-19
Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) distributed for 6-Dec-19 conf.
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines resp. due 9-Dec-19
Malpasso v. Pallozzi 4th Cir. 26-Sep-19 MD “may issue” public carry regime resp. due 18-Dec-19
Pennsylvania v. Hicks Penn. 27-Sep-19 How a firearm can factor into reasonable suspicion under the Fourth Amendment distributed for 6-Dec-19 conf.
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents resp. due 13-Jan-20
Matsura v. United States 9th Cir. 25-Oct-19 Unlawful possession of a firearm by a prohibited person resp. due 30-Dec-19




SCOTUS Gun Watch, Episode 5

Unlike last week, with the big news about the Court’s decision not to hear the Remington case arising from the shooting at Sandy Hook Elementary, this week was quieter. But we did get an unusual letter from the Solicitor General about NYSRPA. In that letter, filed on Friday afternoon, the SG informed the Court that, although it had previously taken no position on the mootness question, it had since determined that “[i]n the United States’ view, respondents have not established that this case is moot.” It offered to file a brief to that effect, which the Supreme Court accepted—asking for a letter brief in the next few hours. The SG obliged, arguing that the potential for prospective relief kept the case alive, but rejecting most of petitioners’ broader alternative theories that the case was not moot. [Update: I originally said the SG gave two reasons the case was not moot, but on closer read the SG really appears to argue just one core avenue, though he hedged a bit on other reasons the petitioners gave; ultimately, he rejected most of those.] The Court gave each of the parties opportunity to respond by Wednesday, November 20th at 2pm (just in time for the Thanksgiving holiday).

Here’s where the rest of the cases, mostly unchanged since last week, stand:

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 distributed for

22-Nov-19 conf.

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 resp. due 4-Dec-19
Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) reply due @ 18-Nov-19
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines resp. due 9-Dec-19
Malpasso v. Hamilton 4th Cir. 26-Sep-19 MD “may issue” public carry regime resp. due 18-Dec-19
Pennsylvania v. Hicks Penn. 27-Sep-19 How a firearm can factor into reasonable suspicion under the Fourth Amendment reply due @ 14-Nov-19
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents resp. due 13-Jan-20
Matsura v. United States 9th Cir. 25-Oct-19 Unlawful possession of a firearm by a prohibited person resp. due 29-Nov-19

 




SCOTUS Gun Watch, Episode 4

The big news from this week is that the Supreme Court denied certiorari in the case arising from the Sandy Hook massacre—Remington v. Soto. As I’ve written about (here and here), the Court might have been concerned about vehicle issues with the petition. The petition raised a question about whether the federal law immunizing gun manufacturers in most situations, the Protection for Lawful Commerce in Arms Act, applied to these facts. Because the case came up from an interlocutory ruling, there was some question about the Supreme Court’s appellate jurisdiction. But, in any event, the case may now proceed through discovery and to trial. More surprising to me than the fact that the Court denied review was the fact that there was no noted dissent from the denial.

I’ve also added one more case to the chart: Pennsylvania v. Hicks. The petition was filed a little over a month ago, but I didn’t initially include it because firearms are only tangentially involved. But, because it raises a question about how the presence of firearms affects law enforcement’s ability to conduct investigatory stops, and with increasingly loosened restrictions on public carry, I thought it worth keeping an eye on.

We also have our first briefing deadline extended into the New Year, ensuring that 2020 will bring just as much debate over guns as 2019 did.

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 distributed for

22-Nov-19 conf.

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 resp. due 4-Dec-19
Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) reply due @ 18-Nov-19
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines resp. due 9-Dec-19
Malpasso v. Pallozzi 4th Cir. 26-Sep-19 MD “may issue” public carry regime resp. due 18-Dec-19
Pennsylvania v. Hicks Penn. 27-Sep-19 How a firearm can factor into reasonable suspicion under the Fourth Amendment reply due @ 14-Nov-19
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents resp. due 13-Jan-20
Matsura v. United States 9th Cir. 25-Oct-19 Unlawful possession of a firearm by a prohibited person resp. due 29-Nov-19



SCOTUS Gun Watch, Episode 3

Last week was another relatively quiet week on the gun docket. A few briefing deadlines were extended, and we got one new firearms-related cert petition this week in a case seeking GVR (grant, vacate, and remand; a form of summarily sending a case back to the lower court to consider in light of a recent Supreme Court case or other intervening change in law). That case argues GVR is warranted in light of last term’s Rehaif decision requiring the government to prove that an individual prohibited from possessing guns knew the status that made his possession unlawful (here, his particular immigration status).

One highlight for the week: the case arising from the Sandy Hook massacre—Remington v. Soto—which I’ve written about a couple of times (here and here), goes to its first conference this Friday. It’s possible, though unlikely, that we’ll hear news about the Court’s decision to hear the case or not in the orders coming next Tuesday after the conference. (Monday’s a federal holiday next week, so no orders then.) It’s more likely we’ll have to wait a little longer if the Court is inclined to hear the case as the Court increasingly relies on the practice of relisting a case for multiple conferences in the event it’s going to grant review.

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 reply filed 31-Oct-2019
Remington Arms v. Soto Conn. 1-Aug-19 Scope of  gunmaker immunity under the Protection for Lawful Commerce in Arms Act distributed for

8-Nov-19 conf.

Guedes v. ATF D.C. Cir. 29-Aug-19 Ban on bump stocks resp. due 4-Dec-2019
Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) resp. due 4-Nov-2019
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines resp. due 9-Dec-19
Malpasso v. Hamilton 4th Cir. 26-Sep-19 MD “may issue” public carry regime [resp. extension request pending]
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents [resp. extension request pending]
Matsura v. United States 9th Cir. 25-Oct-19 Unlawful possession of a firearm by a prohibited person resp. due 29-Nov-19

 




Panel on Guns and Domestic Violence: U.S. & International Human Rights Law Perspectives

On October 14, the Center co-hosted a panel with distinguished speakers for a discussion on the role of firearms in domestic violence situations. The speakers recounted some truly disturbing statistics: about 4.5 million women have been threatened with a gun by an intimate partner; almost a million women have been shot or shot at by a partner; and a woman is five times more likely to be killed in a domestic violence situation if the abuser has access to a gun. The Department of Justice’s Office on Violence Against Women has highlighted this research that has shown that “the presence of a gun in domestic violence situations significantly increases the risk of homicide, endangering victims, other family members, bystanders and coworkers.” Center faculty co-director Darrell Miller facilitated the insightful discussion.

Sherry Honeycutt Everett, the Legal & Policy Director at the North Carolina Coalition Against Domestic Violence, spoke about North Carolina’s civil and criminal domestic violence laws and how those laws work (and sometimes don’t) to prevent domestic abusers from using firearms against their victims. (Some of these issues are helpfully spelled out in an earlier article from this year in the Wake Forest Law Review Online.)

 

Verna L. Williams, the Dean of the University of Cincinnati Law School, discussed the Second Amendment right through a social justice feminist lens, which focuses on three methodologies: (1) the history of subordinating structures, (2) interrelationship of interlocking oppressions, (3) bottom-up strategies. Her comments were based on a 2016 Tennessee Law Review article she authored that analyzed Heller in light of social justice feminism.

 

Aya Fujimura-Fanselow, Senior Lecturing Fellow & Supervising Attorney, International Human Rights Clinic at Duke Law School, talked about the United States’ obligations to prevent firearm violence between intimate partners under various treaties. Her discussion was based, in part, on the work of the Clinic in submitting a report to U.N. Committee on Human Rights about guns and domestic violence in the United States.

 

Each of the panelists provided a unique and important perspective on the threat of gun violence within intimate relationships. They sketched out ways to make women and other victims of domestic violence safer at both the local and international level. We are grateful we had the chance to host this fantastic discussion. The video is definitely worth a watch.