Special Journal Issue with Center Contributors – Gun Violence in America: An Interdisciplinary Examination

The Journal of Law, Medicine, & Ethics recently published a special volume, Gun Violence in America: An Interdisciplinary Examination. The volume was pulled together and edited by Yale Law School’s Ian Ayres, Abbe Gluck, and Tracey Meares with articles largely co-authored with law students from their gun violence seminar last year. Joseph and I have co-authored articles in the volume, which are highlighted below. The whole set of articles look incredibly fascinating and certainly worth the read.

Reva B. Siegel & Joseph Blocher, Why Regulate Guns?

Courts reviewing gun laws that burden Second Amendment rights ask how effectively the laws serve public safety — yet typically discuss public safety narrowly, without considering the many dimensions of that interest gun laws serve. “Public safety” is a social good: it includes the public’s interest in physical safety as a good in itself, and as a foundation for community and for the exercise of constitutional liberties. Gun laws protect bodies from bullets — and Americans’ freedom and confidence to participate in every domain of our shared life, whether to attend school, to shop, to listen to a concert, to gather for prayer, or to assemble in peaceable debate. Courts must enforce the Second Amendment in ways that respect the public health and constitutional reasons a democracy seeks to protect public safety. Lawyers and citizen advocates can help, by creating a richer record of their reasons in seeking to enact laws regulating guns.

This inquiry is urgent at a time when the Supreme Court’s new conservative majority may expand restrictions on gun laws beyond the right to keep arms for self-defense in the home first recognized in District of Columbia v. Heller in 2008.

Joseph Blocher & Bardia Vaseghi, True Threats, Self-Defense, and the Second Amendment

Does the Second Amendment protect those who threaten others by negligently or recklessly wielding firearms? What line separates constitutionally legitimate gun displays from threatening activities that can be legally proscribed? This article finds guidance in the First Amendment doctrine of true threats, which permits punishment of “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individual.” The Second Amendment, like the First, should not be read to protect those who threaten unlawful violence. And to the degree that the constitution requires a culpable mental state (mens rea) in such circumstances, the appropriate standard should be recklessness.

Gabriel A. Delaney & Jacob D. Charles, A Double-Filter Provision for Expanded Red Flag Laws: A Proposal for Balancing Rights and Risks in Preventing Gun Violence

In response to the continued expansion of “red flag” laws allowing broader classes of people to petition a court for the removal of firearms from individuals who exhibit dangerous conduct, this paper argues that state laws should adopt a double-filter provision that balances individual rights and government public safety interests. The main component of such a provision is a special statutory category — “reporting party” — that enables a broader social network, such as co-workers or school administrators, to request that a law enforcement officer file a petition for an Extreme Risk Protection Order (ERPO). A double-filter provision would not give reporting parties a right to file a court petition directly. Instead, parties would file a request for petition with law enforcement officers (first filter), who must seek an ERPO from the court if they find the reporting party’s information credible. That information is then transmitted to the court (second filter) as a sworn affidavit of the reporting party. The goal is to facilitate a balanced policy model that (1) widens the reporting circle in order to feed more potentially life-saving information into the system, (2) mitigates the risk of erroneous deprivation of constitutionally protected due process and Second Amendment rights.




Guns Laws, Decatur, and Protecting Black Lives

I just finished Kathleen Belew’s excellent book, Bring the War Home: The White Power Movement and Paramilitary America, and one story there stuck out to me. It’s a story about racist violence motivating stricter gun regulations with particular resonance for this moment.

In 1979, a small group of Black protesters was marching in protest of the shoplifting arrest of a Black man in Decatur, Alabama (yes, the Alabama one). A group of 200 robed Ku Klux Klan members carrying rifles, pistols, and shotguns surrounded the 8 protesters. They wounded four protesters and fired into a car before police broke up the confrontation. In response to this armed intimidation, the Decatur City Council passed an ordinance banning the carrying of weapons within 1,000 feet of any public demonstration. There is no doubt that the City Council enacted the law in response to white supremacist violence and armed intimidation and that at least one goal was to protect peaceful protest, including for the Black Americans whose gathering had previously been interrupted. And the KKK understood the ordinance as aimed at their armed confrontations. The New York Times reported at the time that shortly after the law was passed “200 robed and heavily armed Klansmen paraded through town and circled the home of Mayor Bill Dukes, jeering defiance as Decatur policemen stood by, some waving in greeting. Ray Stelle, Klan kleagle, or lieutenant, said, ‘If the Mayor wants our guns, he’ll have to come and get them.’”

This episode reminded me of another gun law motivated by a concern for Black lives. The law struck down in Heller—banning handguns from the District—was strongly endorsed in the District’s Black communities and passed by its majority Black City Council. James Forman describes how those at the time viewed the law as “a civil rights triumph.” It helped to show that, “at least in D.C., the killing of black men mattered.” Gun laws, like these, have been used many times in our history to protect racial minorities from the harms that guns can cause to communities of color.

To be sure, throughout U.S. and English history, gun laws—like all laws—have sometimes targeted racial or religious minorities. And, as a matter of enforcement, even today’s neutral gun laws are often enforced disproportionately against communities of color. These are systemic problems with the criminal legal system that should give pause to those who seek to further criminalize gun-related conduct. But the Decatur and D.C. examples alone demonstrate that it is overly simplistic to suggest “all gun control is racist.” The situation in Decatur shows democratic institutions, even in the Deep South, responding to armed intimidation and violence against Black Americans by enacting gun laws designed to protect them. The fact that the KKK interrupted a peaceful protest—a quintessential act of democratic participation—demonstrates how guns can threaten harm even when no one is shot or killed. As Joseph highlighted last week, his new article with Reva Siegel unpacks these ways that guns can, especially through armed intimidation like that undertaken by the Decatur Klan, inflict a public harm on civic life. And just as legislatures can take action to guard against the physical injuries that guns cause—like the D.C. City Council in 1975—they can also act to guard against the democratic injuries that guns cause—like the Decatur City Council in 1979.




SCOTUS Gun Watch – Week of 1/18/21

None of the current gun cases pending before the Court are fully briefed, so it will be at least a few weeks before we get any confirmation about the Court’s willingness to take another Second Amendment challenge. But when that happens, the justices will have the chance to pick from either (1) one of a large variety of prohibited person cases, including the law barring firearm possession both for those with non-violent felony convictions and for those with past involuntary commitment to a mental health institution, or (2) a case challenging a discretionary public carry licensing scheme. On both these issues, the courts of appeals have extensively engaged with the issue and a majority have upheld the laws. But, on both issues, at least one court of appeals has gone the other way.

Petitions Pending

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Hobbs v. United States

(20-171)

6th Cir. 13-Aug-20 Guilty plea under 922(g) without knowledge of disqualifying status

 

distributed for 8-Jan-2021 conf.
Holloway v. Barr

(20-782)

3d Cir. 3-Dec-20 As-applied challenge to 922(g)(1) response due 8-Feb-2021
Mai v. United States

(20-819)

9th Cir. 9-Dec-20 As-applied challenge to 922(g)(4) response due 18-Feb-2021
Folajtar v. Barr

(20-812)

3d Cir. 11-Dec-20 As-applied challenge to 922(g)(1) response due 16-Feb-2021
Knowles v. Hart

(20-840)

11th Cir. 17-Dec-20 Fourth Amendment challenge to use of deadly force against person with holstered weapon response due 21-Jan-2021
New York State Rifle & Pistol Association v. Corlett

(20-843)

2d Cir. 17-Dec-20 Challenge to New York’s good cause public carry regime response due 22-Feb-2021
Flick v. Rosen 11th Cir. 29-Dec-20 As-applied challenge to 922(g)(1) response due

4-February-2021

Petitions Disposed

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Greer v. United States

(19-8709)

11th Cir. 8-Jun-2020 Scope of appellate review for Rehaif errors Cert Granted
Caniglia v. Strom

(20-157)

1st Cir. 10-Aug-20 Fourth Amendment challenge to gun removal Cert Granted
United States v. Gary

(20-444)

4th Cir. 5-Oct-20 Guilty plea under 922(g) without being informed that knowledge is an element of the offense

(Govt is petitioner)

Cert Granted
Rodriguez v. San Jose

(19-1057)

9th Cir. 21-Feb-20 Warrantless search and seizure of firearms under Fourth Amendment Cert Denied
Johnson v. United States

(19-1390)

4th. Cir. 12-Jun-20 Vagueness challenge to the Armed Career Criminal Act’s elements clause Cert Denied
Zoie H. v Nebraska

(19-1418)

Neb. Sup. Ct. 22-June-20

 

Second and Sixth Amendment challenge to jury-less conviction that can result in gun disqualifer for juveniles Cert Denied
Caldara v. City of Boulder

(20-416)

10th Cir. 24-Sep-20 Federal court abstention over Second Amendment claims being adjudicated in state court Cert Denied
Torres v. United States

(20-5579)

9th Cir. 27-Aug-20 As-applied challenge to 922(g)(1) Cert Denied
E.H. v. Florida Dept. Ag. (Pro se)

(20-627)

Fla. Ct. App. 9-Oct-20 Challenge to firearm license denial based on prior mental health commitment Cert Denied
Porter v. United States

(20-522)

6th Cir. 16-Oct-20 Challenge to ACCA enhancement Cert Denied
Yoo v. United States

(20-550)

5th Cir. 21-Oct-20 Challenge to conviction based on misstatements on Form 4473 (req’d for purchase at a gun dealer) Cert Denied

 




When Guns Threaten the Public Sphere: Recovering the Common Law Approach to Public Safety

What can armed protest teach about the case for gun regulation?  Reva Siegel and I have just posted our article, When Guns Threaten the Public Sphere: Recovering the Common Law Approach to Public Safety, which is forthcoming as part of the Northwestern Law Review symposium the Center co-sponsored this past fall. Here is the abstract:

Today, the gun debate focuses on how regulation can reduce the staggering number of Americans who are wounded or killed by guns every year. This Article widens that focus beyond injury-prevention, beyond the horrors of Sandy Hook, Parkland, and constant daily shootings, to examine cases where guns threaten and intimidate without inflicting physical injury—for example, when armed masses flood the legislature (Washington D.C. or Michigan), or when individuals pull guns on citizens in a protest march (St. Louis), or when people use guns to assert coercive control over intimate partners (everywhere).

Guns shape the ways we live together. As we show in an account of the armed protesters who flooded the Michigan legislature, weapons can be used not only to injure but to intimidate. For this reason, the government interest in regulating arms to promote public safety is not only concerned with preventing physical injuries, but also with preventing weapons threats. Recognizing that government regulates guns to prevent social as well as physical harms is a critical first step in building a constitutional democracy where citizens have an equal claim to security and to the exercise of liberties whether or not they are armed and however they may differ by race, sex, or viewpoint. We draw on this principle in developing one of the first accounts of the public safety interest in regulating weapons.

In the wake of the January 6 riots in the United States Capitol, we have updated the Article to show how the assault on the Michigan legislature is connected to violent challenges to the 2020 election. These events, as well as many others from daily life, illustrate the character, scope, and stakes of public safety in a constitutional democracy.

All agree that there is a public safety interest in regulating guns, yet few agree about its scope. Some advocates of public carry are beginning to argue that preventing physical injury is the only legitimate reason for regulating guns.  Other advocates, judges, and scholars claim that the Constitution restricts a democracy’s ability to legislate in the interest of public safety and privileges the claims of citizens who rely on guns, rather than gun laws, to respond to fears of violence.

To counter these arguments, we demonstrate that a different understanding of public safety is deeply rooted in our history. For centuries, the Anglo-American common law has regulated weapons not only to keep members of the polity alive, but to protect their liberties against weapons threats and to preserve public peace and order. That regulatory tradition has long shaped state and federal law. Critically, we show that this regulatory tradition grounds the understanding of the Second Amendment set forth in District of Columbia v. Heller, where Justice Scalia specifically invokes it as a basis for reasoning about the regulation of guns.

Guided by core principles of our constitutional democracy and by traditions informing the Second Amendment itself, government can enact and enforce gun laws that secure public and private spaces for equal enjoyment by all citizens. We dispute scholars who assert that the Constitution privileges the security claims of the armed over the unarmed, or allows the redress of physical but not social injury. We show how concern for the even handed enforcement of gun laws is a core part of the public safety interest. Given the commitments that define our constitutional democracy, government can regulate weapons to ensure that all persons have equal claims to security and to the exercise of liberties whether or not they are armed and however they may differ by race, sex, or viewpoint.




Members of Congress Have Little Right to Bear Arms on Capitol Hill

After last week’s riot at the Capitol, the acting House Sergeant-at-Arms implemented a new policy requiring House members to be screened for weapons before entering the House chamber.  On Tuesday, June 12, the U.S. Capitol Police declined to admit Rep. Lauren Boebert (R.-Colo.) to the floor of the House of Representatives after she refused to allow Capitol Police to inspect a bag she was carrying. Rep. Boebert protested on Twitter that she is “legally permitted to carry my firearm in Washington, D.C.[,] and within the Capitol complex.”  Rep. Madison Cawthorn (R.-NC) also claimed that he was armed during the riot.

These two freshmen are not the only Members of Congress who have firearms on Capitol Hill.  Earlier this year, Rep. Ken Buck (R.-Colo.) made news when he showed off an AR-15 rifle that he keeps in his office, telling “Joe Biden and Beto O’Rourke, if you want to take everyone’s AR-15s, why don’t you swing by my office in Washington, D.C. and start with this one?”

Joe Biden is unlikely to confiscate Rep. Buck’s AR-15; but the U.S. Attorney for the District of Columbia might.  At least two sets of laws govern the possession of weapons within the Capitol complex.  In 1967, Congress specifically prohibited the carrying of accessible weapons in all capitol buildings and grounds.  In addition to this federal law, the general criminal law of the District of Columbia applies to the Capitol complex.  The District has strict rules on firearms.  Among these, all firearms must be registered, some firearms cannot be lawfully registered  (e.g., certain semiautomatic firearms deemed “assault weapons”), ammunition magazines cannot exceed a 10-round capacity, the carrying of rifles and shotguns is prohibited, and the carrying of pistols is lawful only with a license to carry issued by the District of Columbia.  (As the signs at the Capitol office buildings warn visitors, the District does not recognize carry permits from other states.)  Even with a license, the District prohibits the carrying of pistols in many places, including the “U.S. Capitol buildings and grounds” and within 1,000 feet of a demonstration.

The 1967 federal law contained an exception for those “authorized by regulations which shall be promulgated by the Capitol Police Board.”  The Capitol Police Board regulations (Appendix J), in turn, provide that, “nothing contained in [the 1967 federal law] shall prohibit any Member of Congress from maintaining firearms within the confines of his office or any Member of Congress or any employee or agent of any Member of Congress from transporting within the Capitol Grounds firearms unloaded and securely wrapped.”  When Rep. Buck faced questions about the legality of his rifle, the Capitol Police pointed to this regulation to explain why his possession of the rifle was lawful.

But Capitol Police Board regulations do not authorize him—or any other Member of Congress—to possess firearms in violation of District law.  The Capitol Police Board regulations merely exempt certain people from the 1967 federal law.  On their face, they do not purport to confer a general authority to possess firearms in violation of District law.  Nor does the Capitol Police Board have the power to grant such an authority.  The 1967 federal law had a savings clause providing that “[n]one of the general laws of the United States and none of the laws of the District of Columbia shall be superseded by any provision of this Act.”  So while the Capitol Police Board regulations provide Members of Congress with a limited exception from the 1967 federal law governing weapons on Capitol grounds, they do not preempt the District’s general gun laws—which apply at the Capitol as they do elsewhere in the District.

Possession of an AR-15 rifle is unlawful in the District.  The District of Columbia’s statutory definition of “assault weapons” includes any semiautomatic rifle with a detachable magazine and a pistol grip.  These weapons cannot be registered in the District, and a person possessing such a firearm is subject to a misdemeanor prosecution for possession of an unregistered firearm.  Rep. Buck’s AR-15 has a pistol grip and a detachable magazine, so it fits within this definition.  Rep. Buck’s rifle also appeared to have a thirty-round magazine attached.  If so, Rep. Buck could be prosecuted for that, too.  The District of Columbia prohibits ammunition magazines that can accept more than 10 rounds, and in 2019, the District elevated the penalty for this crime from a misdemeanor to a felony.

Rep. Buck is correct that his possession of a rifle within his office is consistent with Capitol Police Board regulations.  So he could not be charged under the 1967 federal law with unlawfully possessing a firearm on Capitol Grounds.  But because the federal law did not supersede the District’s weapons laws, he still could be prosecuted for violating the District’s gun control laws.

Rep. Buck has also claimed that his rifle is “non-functional” because it “is lacking its bolt carrier group” (which contains the firing pin among other components) and has been equipped with a trigger lock.  But the District’s definition of firearm includes “any weapon, regardless of operability, which . . . [can be] readily converted, restored, or repaired, or is intended to, expel a projectile . . . by the action of an explosive” and includes “the frame or receiver of any such device.”  The removal of the bolt carrier group and the existence of the trigger lock will not remove his AR-15 from the District’s regulation of firearms.

What about Rep. Boebert and Cawthorn’s desire to carry pistols throughout the Capitol?  The Capitol Police Board regulations only permit Members of Congress to keep firearms in their offices and to transport unloaded and securely wrapped firearms elsewhere.  They do not permit the carrying of a loaded pistol outside a Member’s office.  The regulations further prohibit all persons (including those otherwise authorized to carry guns at the Capitol) from carrying any firearms inside the House or Senate chamber and some other adjacent spaces, “unless assigned or approved by the two Sergeants of Arms for maintenance of adequate security.”  So Members have no right to be on the floor with firearms, loaded or otherwise.  Members who violate the Capitol Police Board regulations could face federal prosecution under the 1967 federal law.

Even within a Member’s own office, District law imposes further restrictions.  Members’ weapons would have to be registered in the District of Columbia, and they could not have any high-capacity magazines.  Their ability to carry a pistol within their office is still questionable.  District law prohibits individuals with licenses from carrying concealed pistols in certain areas, including the Capitol buildings and grounds.  So Members could not rely on having a DC concealed carry permit to carry their weapons anywhere in the Capitol, including their offices.  Without a license, District law permits a person to carry a registered firearm in his “place of business.”  I’m not sure if the Members’ offices will count as their personal places of business.  If it is, then (and only then) could they carry loaded pistols in their offices.  But here again, Members have no authority to bear arms outside their offices.  Those who do could face prosecution under District law, either for carrying a pistol without a license or, if they were licensed, for carrying a firearm in a prohibited place.  Outside of their offices, Members may only transport firearms within the Capitol complex if they remain outside the House and Senate chambers (and surrounding areas), and if the firearms are unloaded and in a locked container (which would comply with both Capitol Police Board regulations, which require firearms to be unloaded and securely wrapped, and District law, which requires that the transporting container be locked).

If that were not enough, there is one further federal law complication.  A 1988 federal law (18 U.S.C. § 930) makes it a misdemeanor to possess a firearm in a federal facility, which is defined as “a building or part thereof owned or leased by the Federal Government, where Federal employees are regularly present for the purpose of performing their official duties.”  The Capitol buildings likely fit within this definition.  (I am not aware of any charges brought under § 930 for possessing firearms in a capitol building—people are usually charged under the 1967 law or the District’s gun laws because they contain higher penalties.)  Section 930 has an exception for “the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes.”  The scope of this section—especially as it applies to “other lawful purposes”—remains largely untested.  Federal courts would be unlikely to recognize, however, that it covers the carrying of loaded firearms for self-defense because such a broad exemption would largely negate the attempt in § 930(a) to generally prohibit weapons in federal buildings.  See United States v. De la Cruz-Bancroft, No. CR 09-MJ-319 JH/WDS, 2010 WL 8752034, at *2 (D.N.M. Jan. 4, 2010).  Nor is it clear how § 930’s general ban on firearms in federal facilities would interact with the specific 1967 law that Congress implemented for the Capitol.  A general rule of statutory construction is that specific laws prevail over general laws, so ordinarily one might think that the exception for Members of Congress in the 1967 law should prevail over the generic ban of firearms in federal facilities in § 930.  But the 1967 law states that it does not supersede any of the “general laws of the United States.”  The savings clause means that, even if Capitol Police Board regulations exempt Members under the 1967 law, it might not shield them from prosecution under § 930.

Finally, Members of Congress do not have any special right to break criminal law, ex officio.  While the Constitution affords Members of Congress a privilege from civil arrest “during their Attendance at the Session of their respective Houses,” that privilege does not apply to arrests for “Treason, Felony and Breach of the Peace”—a term of art that encompassed all crimes.  Nor could they rely on the Second Amendment’s right to bear arms.  Heller’s dicta, which lower courts have followed, state that governments may ban “the carrying of firearms in sensitive places such as schools and government buildings.”  The D.C. Circuit has already held that the Capitol complex is a quintessential sensitive place.

In the nineteenth century, it was not uncommon for Members of Congress to have pistols in their desks.  (Nor was it uncommon for other members to complain about their brethren who were armed with concealed weapons.)  In the twentieth century, John Dingell supposedly kept a hunting shotgun in a Capitol basement locker when he was a teenage congressional page.  But federal and District weapons law have become much stricter in recent decades.  Members of the general public routinely face felony prosecutions when they bring weapons to the Capitol complex.  Members of Congress are not above the laws they have enacted.  Except in very limited cases, they have no right to be armed on Capitol Hill.




Recent Center Commentary

Over the past few weeks, Joseph and Darrell have done some commentary on the relationship between guns and democratic institutions.




SCOTUS Gun Watch – Week of 1/11/21

The Court granted cert in two gun cases after its conference last Friday: United States v. Gary, in which the government is the petitioner, and Greer v. United States. Both concern the legal consequences from the Supreme Court’s 2019 decision in Rehaif clarifying that the government must prove a person knew about the status that made them ineligible to possess firearms under 18 U.S.C. § 922(g). Gary does not surprise me, as I suggested last week. Greer is one that had not been on my radar, but asks what an appellate court may review when considering the effect of a Rehaif error in the trial court. It’s now added to the chart. I suspect that Hobbes, which the Court considered at conference last Friday but did not act on in its order list, will be held pending the decision in one or both of those cases.

There is also one new as-applied Second Amendment challenge that I wrote about last week.

(On a formatting note, I’m moving all petitions that have been acted on down to a new chart below the pending table.)

Petitions Pending

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Hobbs v. United States

(20-171)

6th Cir. 13-Aug-20 Guilty plea under 922(g) without knowledge of disqualifying status

 

distributed for 8-Jan-2021 conf.
Holloway v. Barr

(20-782)

3d Cir. 3-Dec-20 As-applied challenge to 922(g)(1) response due 8-Feb-2021
Mai v. United States

(20-819)

9th Cir. 9-Dec-20 As-applied challenge to 922(g)(4) response due 18-Feb-2021
Folajtar v. Barr

(20-812)

3d Cir. 11-Dec-20 As-applied challenge to 922(g)(1) response due 16-Feb-2021
Knowles v. Hart

(20-840)

11th Cir. 17-Dec-20 Fourth Amendment challenge to use of deadly force against person with holstered weapon response due 21-Jan-2021
New York State Rifle & Pistol Association v. Corlett

(20-843)

2d Cir. 17-Dec-20 Challenge to New York’s good cause public carry regime response due 22-Jan-2021
Flick v. Rosen 11th Cir. 29-Dec-20 As-applied challenge to 922(g)(1) response due

4-February-2021

Petitions Disposed

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Greer v. United States

(19-8709)

11th Cir. 8-Jun-2020 Scope of appellate review for Rehaif errors Cert Granted
Caniglia v. Strom

(20-157)

1st Cir. 10-Aug-20 Fourth Amendment challenge to gun removal Cert Granted
United States v. Gary

(20-444)

4th Cir. 5-Oct-20 Guilty plea under 922(g) without being informed that knowledge is an element of the offense

(Govt is petitioner)

Cert Granted
Rodriguez v. San Jose

(19-1057)

9th Cir. 21-Feb-20 Warrantless search and seizure of firearms under Fourth Amendment Cert Denied
Johnson v. United States

(19-1390)

4th. Cir. 12-Jun-20 Vagueness challenge to the Armed Career Criminal Act’s elements clause Cert Denied
Zoie H. v Nebraska

(19-1418)

Neb. Sup. Ct. 22-June-20

 

Second and Sixth Amendment challenge to jury-less conviction that can result in gun disqualifer for juveniles Cert Denied
Caldara v. City of Boulder

(20-416)

10th Cir. 24-Sep-20 Federal court abstention over Second Amendment claims being adjudicated in state court Cert Denied
Torres v. United States

(20-5579)

9th Cir. 27-Aug-20 As-applied challenge to 922(g)(1) Cert Denied
E.H. v. Florida Dept. Ag. (Pro se)

(20-627)

Fla. Ct. App. 9-Oct-20 Challenge to firearm license denial based on prior mental health commitment Cert Denied
Porter v. United States

(20-522)

6th Cir. 16-Oct-20 Challenge to ACCA enhancement Cert Denied
Yoo v. United States

(20-550)

5th Cir. 21-Oct-20 Challenge to conviction based on misstatements on Form 4473 (req’d for purchase at a gun dealer) Cert Denied



Cert Petition Highlight: Flick v. Rosen

In addition to the several other Second Amendment challenges recently filed at the Supreme Court, a new one was filed in the last days of 2020 and just docketed earlier this week: Flick v. Rosen. Like a couple of the other petitions, Flick involves an as-applied challenge to the felon prohibitor. But unlike at least one of the others, this conviction is a federal one, meaning that the Kenneth Flick has no possibility of getting his firearm rights restored outside a presidential pardon. (While that avenue used to be considered effectively closed for those seeking gun-rights restoration, President Trump just recently pardoned Ricky Kanter, whose Second Amendment challenge then-Judge Amy Coney Barrett voted to uphold.)

Flick’s conviction involved a criminal copyright violation about 30 years ago. As I’ve written previously about the case, the Eleventh Circuit’s approach to his case all but shut the door on as-applied challenges. Thus, even though the state of Georgia, where Flick resides, has restored his civil rights, including gun rights, the federal conviction still stands as a bar to Flick’s lawful possession of a gun. In the next few months, we should have a pretty good idea of whether or not the Supreme Court–which so far has seemed particularly uninterested in prohibited person cases–will take up and decide whether the federal prohibitors are open to as-applied challenges.




SCOTUS Gun Watch – Week of 1/4/21

As the new year begins, court-watchers will be following the Supreme Court closely as it fills out the rest of its docket for this term. Of the many cases on tap, there are a handful of Second Amendment challenges that will give us a chance to see how Justice Barrett’s presence on the Court has shifted matters. Several gun cases will be discussed at the Court’s conference this Friday, but none of those are directly about the Second Amendment (I would not be surprised if we get a grant in one of these to help lower courts figure out what to do with Rehaif errors). For Second Amendment challenges, we will have to wait a few more months, but the number of such petitions does seem to be increasing, with 5 filed in December alone.

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Rodriguez v. San Jose

(19-1057)

9th Cir. 21-Feb-20 Warrantless search and seizure of firearms under Fourth Amendment Cert Denied
Johnson v. United States

(19-1390)

4th. Cir. 12-Jun-20 Vagueness challenge to the Armed Career Criminal Act’s elements clause Cert Denied
Zoie H. v Nebraska

(19-1418)

Neb. Sup. Ct. 22-June-20

 

Second and Sixth Amendment challenge to jury-less conviction that can result in gun disqualifer for juveniles Cert Denied
Caldara v. City of Boulder

(20-416)

10th Cir. 24-Sep-20 Federal court abstention over Second Amendment claims being adjudicated in state court Cert Denied
Caniglia v. Strom

(20-157)

1st Cir. 10-Aug-20 Fourth Amendment challenge to gun removal Cert Granted
Torres v. United States

(20-5579)

9th Cir. 27-Aug-20 As-applied challenge to 922(g)(1) Cert Denied
Yoo v. United States

(20-550)

5th Cir. 21-Oct-20 Challenge to conviction based on misstatements on Form 4473 (req’d for purchase at a gun dealer) Cert Denied
Hobbs v. United States

(20-171)

6th Cir. 13-Aug-20 Guilty plea under 922(g) without knowledge of disqualifying status

 

distributed for 8-Jan-2021 conf.
United States v. Gary

(20-444)

4th Cir. 5-Oct-20 Guilty plea under 922(g) without being informed that knowledge is an element of the offense

(Govt is petitioner)

distributed for 8-Jan-2021 conf.
E.H. v. Florida Dept. Ag. (Pro se)

(20-627)

Fla. Ct. App. 9-Oct-20 Challenge to firearm license denial based on prior mental health commitment distributed for 8-Jan-2021 conf.
Porter v. United States

(20-522)

6th Cir. 16-Oct-20 Challenge to ACCA enhancement distributed for 8-Jan-2021 conf.
Holloway v. Barr

(20-782)

3d Cir. 3-Dec-20 As-applied challenge to 922(g)(1) response due 8-Feb-2021
Mai v. United States

(20-819)

9th Cir. 9-Dec-20 As-applied challenge to 922(g)(4) response due 18-Feb-2021
Folajtar v. Barr

(20-812)

3d Cir. 11-Dec-20 As-applied challenge to 922(g)(1) response due 16-Feb-2021
Knowles v. Hart

(20-840)

11th Cir. 17-Dec-20 Fourth Amendment challenge to use of deadly force against person with holstered weapon response due 21-Jan-2021
New York State Rifle & Pistol Association v. Corlett

(20-843)

2d Cir. 17-Dec-20 Challenge to New York’s good cause public carry regime response due 22-Jan-2021




Top 10 Posts of the Year

2020 has certainly been a wild and unpredictable year. While that is obviously true in the wider world, it is also true in the Second Amendment context. This year saw the Supreme Court’s decision in the first argued Second Amendment case in a decade, and that decision gave no guidance on substance; the denial of cert in more than ten other cases that presented nearly all the open questions in the lower courts; the death of Justice Ginsburg and Justice Barrett’s selection to take her place; the election of a new president who has promised action on firearms; and a continuing robust public and academic debate over the place of guns in modern American life. We’ve discussed many of these issues on the blog this year as we’ve followed and contributed to these discussions. Looking back over that coverage, below are our top ten most read posts of the year (okay technically since May 2020 when we transitioned to a new platform).

  1. When Stand Your Ground Meets Blue Lives Matter
  2. The Supreme Court and the Current Public Carry Petitions: Open Splits and Concealed Vehicle Problems
  3. Bostock, Textualism and the Meaning of “Bear Arms”
  4. Justice Alito’s Second Amendment
  5. Amy Coney Barrett on Guns
  6. Why Heller Is Such Bad History
  7. Reading the Second Amendment SCOTUS Tea Leaves
  8. Constitutional Visions for the Arms Right
  9. A Court in Denial
  10. Benefits, Burdens, and Fundamental Rights: The Chief Justice in June Medical and Thoughts on the Second Amendment