SCOTUS Gun Watch – Week of 2/22/21

Last week, I noted that McGinnis could be the next big Second Amendment case. But this morning the Supreme Court denied cert in the case. And there were no noted dissents from that decision. I suspect that the denial was a combination of factors, including that the petitioner was not too sympathetic and the substantive law at issue, 922(g)(8), had not been subject to disagreement in the lower courts. Yet I have to think it also signals continuing debate among the conservative wing of the Supreme Court over just what methodology should be used for Second Amendment challenges. We’ll see with the next petitions waiting to get a conference.

There’s also one new cert petition in Fleury challenging a conviction under Massachusetts’s safe storage law. (The petition was filed Nov. 2, 2020 but not docketed until Feb. 16, 2021).

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 at

8-Jan-2021 conf.

McGinnis v. United States

(20-6046)

5th Cir. 13-Oct-20 As-applied challenge to 922(g)(8) distributed for 19-Feb-21 conf.
Fleury v. Massachusetts

(20-1122)

App. Ct. Mass. 2-Nov-20 Challenge to Mass. firearm storage law response due 18-Mar-2021
Holloway v. Barr

(20-782)

3d Cir. 3-Dec-20 As-applied challenge to 922(g)(1) response due 10-Mar-2021
Mai v. United States

(20-819)

9th Cir. 9-Dec-20 As-applied challenge to 922(g)(4) response due 19-Mar-2021
Folajtar v. Barr

(20-812)

3d Cir. 11-Dec-20 As-applied challenge to 922(g)(1) response due 17-Mar-2021
Knowles v. Hart

(20-840)

11th Cir. 17-Dec-20 Fourth Amendment challenge to use of deadly force against person with holstered weapon reply due @

18-Feb-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

8-Mar-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 Set for argument 3-Mar-2021
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

 




The Next Big Second Amendment Case?

Today, at its weekly conference, the Supreme Court will consider whether to grant review in McGinnis v. United States. In the case, Eric McGinnis challenges his conviction under 18 U.S.C. § 922(g)(8) for possessing a firearm while subject to a protective order. Both Darrell and I have previously blogged about the case after the Fifth Circuit upheld the conviction. What makes the case most interesting is that more than the challenge to 922(g)(8), McGinnis challenges the methodological framework by which the Fifth Circuit upheld his conviction.

In the Fifth Circuit, the panel applied the traditional two-part framework for deciding Second Amendment challenges that governs in all the federal courts of appeals to have considered the methodological question. Under that test, the panel first assumed that 922(g)(8) burdened conduct protected under the Second Amendment, and then at the second stage applied intermediate scrutiny. It upheld the law as closely related to the government’s interest in preventing gun violence. What is more noteworthy than that holding—with which every circuit court to consider the question has agreed—is Judge Duncan’s separate concurrence, which was joined by Judge Jones. In that concurrence, he questioned the two-step framework and advocated “retir[ing] this framework in favor of an approach focused on the Second Amendment’s text and history.” He indicated he’d be happy to do that en banc in McGinnis or any other case. The Fifth Circuit did not take the case en banc (and it appears no active judge even sought a vote on rehearing en banc).

McGinnis framed his cert petition around this methodological issue. After all, there’s no circuit split on whether 922(g)(8) is constitutional, and there aren’t many dissenting voices on that question either. But with respect to methodology, judges are split. (Circuits, to reiterate, are not.) Many conservative judges have come out strongly in favor of the text, history, and tradition (THT) approach that then-Judge Kavanaugh announced while he was serving on the D.C. Circuit. Justice Barrett wrote a THT-friendly opinion—without expressly endorsing or rejecting it—while a judge on the Seventh Circuit. It’s likely that at least one more of the conservative justices would like that test to govern Second Amendment challenges.

To my mind, the petition has two strikes against it. As I’ve suggested before, I think the Court is less likely to take a direct criminal appeal like this because the petitioner tends to be less sympathetic. In addition, unlike with 922(g)(1), courts aren’t having much trouble upholding convictions under 922(g)(8). But in some ways, those strikes could also be counted in the case’s favor. The Court could use the case to pull a Marbury v. Madison—issue a major ruling that redraws legal boundaries but deny relief in the case at hand. In fact, that was what the Fifth Circuit did with the Second Amendment in 2001 in a case called United States v. Emerson. The factual and legal setting there were very similar to McGinnis. A man challenged on direct appeal his conviction for violating 922(g)(8). But the main difference was that in 2001 every court of appeals in the country that had examined a Second Amendment challenge rejected it on the grounds that the Constitution did not protect private arms possession for purposes unrelated to militia service. Emerson—in a foreshadow of Heller—was the first appellate court to hold otherwise in an opinion that in the end upheld the man’s conviction under 922(g)(8).

So if a majority of the justices want to adopt the methodological framework urged by conservative judges, commentators, and advocates without striking down a popular and universally upheld legal prohibition, McGinnis might be a decent vehicle. Since the justices are meeting this morning, there’s a chance we could hear later in the day whether they will hear the case. We may also have to wait until Monday’s order list to see what the Court decides to do. But either way, we’ll know soon enough.




SCOTUS Gun Watch – Week of 2/15/21

One pending Second Amendment cert petition that I had overlooked (thanks to an observant reader for pointing it out!): McGinnis v. United States. It’s a direct Second Amendment challenge to 922(g)(8), the federal law barring firearm possession for those subject to certain types of restraining orders. And it’s heading to conference this Friday! That leaves an off chance of announcement Friday if the Court wants to take it up; otherwise, we will probably see the result in next Monday’s order list. The government’s opposition brief was filed on January 15, likely one of the Trump administration’s last formal position statements on the Second Amendment. (If the petition is granted, the Biden administration’s DOJ will do the merits briefing.)

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 at

8-Jan-2021 conf.

McGinnis v. United States

(20-6046)

5th Cir. 13-Oct-20 As-applied challenge to 922(g)(8) distributed for 19-Feb-21 conf.
Holloway v. Barr

(20-782)

3d Cir. 3-Dec-20 As-applied challenge to 922(g)(1) response due 10-Mar-2021
Mai v. United States

(20-819)

9th Cir. 9-Dec-20 As-applied challenge to 922(g)(4) response due 19-Mar-2021
Folajtar v. Barr

(20-812)

3d Cir. 11-Dec-20 As-applied challenge to 922(g)(1) response due 17-Mar-2021
Knowles v. Hart

(20-840)

11th Cir. 17-Dec-20 Fourth Amendment challenge to use of deadly force against person with holstered weapon reply due @

18-Feb-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

8-Mar-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

 




SCOTUS Gun Watch – Week of 2/8/21

Another week that I count with no new Second Amendment or firearms law centric cert petitions. One more complicating factor that has likely drawn the pending petitions out longer is that the administration changed over on January 20th, and now a Biden Department of Justice is opposing these challenges. That may not change the substantive response all that dramatically—the Justice Department has uniformly defended the constitutionality of federal gun laws, even when it has taken positions friendlier to gun rights—but now it’s fair to assume that even if the Court grants one of these petitions, it wouldn’t hear the case until next Term, beginning in October 2021. (Two years ago, the Court granted the cert petition in NYSRPA in January 2019 and still did not schedule oral arguments until December 2019, and by then quite a bit had changed.) In all likelihood, that means we would not get a decision in one of these Second Amendment cases until June 2022, since the Court typically releases opinions from its most contested cases at the end of the Term. Of course, the Court is especially unpredictable in this area of law and it could act more quickly, either after full briefing or by deciding a case without oral argument, like it did with Caetano in 2016.

 

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 at

8-Jan-2021 conf.

Holloway v. Barr

(20-782)

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

(20-819)

9th Cir. 9-Dec-20 As-applied challenge to 922(g)(4) response due 19-Mar-2021
Folajtar v. Barr

(20-812)

3d Cir. 11-Dec-20 As-applied challenge to 922(g)(1) response due 17-Mar-2021
Knowles v. Hart

(20-840)

11th Cir. 17-Dec-20 Fourth Amendment challenge to use of deadly force against person with holstered weapon reply due @

18-Feb-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

8-Mar-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




SCOTUS Gun Watch – Week of 2/1/21

After all the expected changes with Justice Amy Coney Barrett’s confirmation, the current Term has turned out to be quite slow so far for Second Amendment cases. Of course, a major reason for that speed is that the Court had just rejected all the pending Second Amendment cases it was holding just before Justice Barrett took the bench. The next round of cases is making its way to the Court, but those take time to complete briefing and go through conference. I still would not be surprised to see a Second Amendment grant in the next few months, but given the past decade, I also wouldn’t be surprised to see a continued waiting game.

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 at

8-Jan-2021 conf.

Holloway v. Barr

(20-782)

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

(20-819)

9th Cir. 9-Dec-20 As-applied challenge to 922(g)(4) response due 19-Mar-2021
Folajtar v. Barr

(20-812)

3d Cir. 11-Dec-20 As-applied challenge to 922(g)(1) response due 17-Mar-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

4-Feb-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

8-Mar-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

 




SCOTUS Gun Watch – Week of 1/25/21

It has been fairly quiet on the Second Amendment and guns front at the Supreme Court. I don’t see any new cert petitions in the last few weeks, and the ones currently pending still have at least a few weeks until the Court considers them at conference. They are relatively stacked, though, so it’s possible we will get a lot of news at once later this spring on the Court’s interest in taking up these challenges.

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 17-Mar-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

8-Mar-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

 




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

 




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