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Scholarship Highlight: Is Bruen an Originalist Decision?

The past few weeks have seen a host of new scholarship surrounding Bruen, which we will cover on the blog going forward.  In a new article, Lawrence Solum and Randy Barnett consider whether “the use of history and tradition in Dobbs, Bruen, and Kennedy [can] be reconciled with the Supreme Court’s embrace of originalism.”  Solum and Barnett largely answer in the negative as to Bruen, observing that “[e]valuating the constitutionality of firearms regulations by comparing them to regulations that have been traditionally accepted from the founding until today is not a method for identifying the original meaning of the text.”  

A separate essay by A.W. Geisel similarly assesses Bruen‘s originalist bona fides and divides the “test into two distinct outputs: a statement about constitutional meaning, and a test for future litigants.”  Specifically, Geisel contends that Bruen‘s second step “focuses exclusively on historical legal practices, which are nonequivalent to either original legal practices or the original legal understanding of the right.”

Lawrence B. Solum and Randy E. Barnett, Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition (January 26, 2023)

Abstract:

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Association v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the implementing doctrines for the First Amendment Establishment and Free Exercise Clauses.

These cases raise important questions about the Court’s approach to constitutional interpretation and construction. Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court’s embrace of originalism?

Part One of this article elucidates the constitutional concepts of history and tradition. Part Two lays out four distinct roles that history and tradition can play: (1) as evidence of original meaning and purpose, (2) as modalities of constitutional argument within a constitutional pluralism framework, (3) as a novel constitutional theory, which we call “historical traditionalism,” and (4) as implementing doctrines. Part Three investigates the roles of history and tradition in Dobbs, Bruen, and Kennedy. In Part Four articulates a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence.

A.W. Geisel, Bruen is Originalish (January 25, 2023)

Abstract:

In the wake of New York State Rifle & Pistol Assn., Inc. v. Bruen, commentators have divided over one seemingly simple question: is the case Originalist? This Essay presents a reading of Bruen that splits Justice Thomas’s “text-and-history” test into two distinct outputs: a statement about constitutional meaning, and a test for future litigants. The former is Originalist, but the latter is not, which leaves Bruen somewhere between Originalism and non-Originalism. Put simply, the case is ‘Originalish.’

By closely examining the language of Justice Thomas’s majority opinion and situating the text-and-history test within his larger constitutional-interpretive project, this Essay charts an inroad toward a sensible reading of the Supreme Court’s current Second Amendment doctrine, one which may prove useful to litigants, judges, and scholars alike.

 




Litigation Highlight: Indiana Federal Judge Rejects Challenge to Federal Serial-Number Law

On December 15, Senior District Judge Robert Miller of the Northern District of Indiana issued an opinion in United States v. Reyna rejecting a Second Amendment challenge to 18 U.S.C. § 922(k)—the federal prohibition on possessing a firearm with a removed, obliterated, or altered serial number.  The decision is notable, especially when compared to an earlier decision from the Southern District of West Virginia in United States v. Price striking down that same regulation (we covered the West Virginia opinion here).

In Reyna, Judge Miller first determined that the defendant was permitted to bring a facial constitutional challenge to 922(k).  Next, the judge turned to whether the plain text of the Second Amendment covers conduct that is regulated by 922(k).  Citing the Third Circuit’s recent decision in Range (which we discussed here, and which has now been vacated and will be reheard by the en banc Third Circuit next month), the judge noted that “the very same phrase that indicates an individual right — ‘the people’— also limits the Second Amendment right to members of the political community and excludes criminals.”  Thus, the Second Amendment’s text does not encompass possession by all people, nor does it encompass possession of all weapons.

Reyna splits with Price by defining 922(k)’s regulated conduct as “possession of a firearm with an obliterated serial number,” rather than mere possession of a firearm.  Judge Miller justified this choice by observing that in neither Heller nor Bruen “did the Supreme Court distill the challenged regulation to so abstract a level as mere possession or mere carrying of a firearm.”  Further, in the judge’s view, “[f]or Step One to have any meaning, the regulated conduct must be defined specifically enough that it can meaningfully compare to the Second Amendment’s plain text — a plain text that is more complex than mere possession.”

The judge next considered whether the plain text covers possessing a gun with an obliterated serial number.  Observing that the Second Amendment does not extend to “weapons not typically possessed by law-abiding citizens for lawful purposes,” the judge determined that firearms with obliterated serial numbers fall into that category.  Such guns are more difficult to trace and, even though excluding them from Second Amendment protection will decrease the total universe of available weapons, “[a] law-abiding citizen who uses a gun for self-defense has no reason to prefer a deserialized gun to a gun with serial number intact.”  The judge found that serial number obliteration does not relate to gun functionality and does not make a gun more useful for self-defense.  Therefore, Judge Miller denied the motion to dismiss the indictment.

One major takeaway from Reyna is its careful consideration of how to define the regulated conduct.  While many judges to apply Bruen thus far have quickly concluded that “mere possession” is the relevant conduct, that conclusion likely misses the mark in most Second Amendment cases.  As Judge Miller notes, neither Heller nor Bruen defined the “conduct” in question so expansively.  Rather, in Heller, the Court defined the conduct as “handgun possession in the home” and, in Bruen, the Court defined the conduct as “publicly carrying a handgun.”  Reyna also correctly concludes that defining the conduct as mere possession—for anything other than a total legislative ban on private gun possession—renders “step one” of the analysis largely meaningless. 

Rendering the first step of the test meaningless by defining the regulated conduct in almost every case as mere gun possession would appear to be a gambit that allows judges to circumvent half of the Supreme Court’s test.  Judges who want to skip straight to the historical step can do so merely by defining the conduct broadly, placing the burden on the government to come forward with historical analogues for a law that doesn’t regulate protected conduct.  Bruen certainly does not mandate historical analogues for every gun-related law, only laws which cover conduct protected by the Second Amendment; no Justice suggested any requirement that regulatory choices be tied to history when the Second Amendment is not implicated.   Of course, there are many instances where a law regulating narrowly-defined conduct does implicate the Second Amendment—Heller and Bruen are examples of this, as are locational restrictions.  But Reyna shows the importance of carefully conducting the “step one” textual inquiry at the correct level of generality.




SCOTUS Gun Watch – Week of 1/23/23

On January 18, the Court denied the application for emergency interim relief in Gazzola v. Hochul, after that application was referred to the full Court by Justice Sotomayor.  The Court issued a one-sentence order, but there was no separate statement as in Antonyuk v. Nigrelli.  Gazzola deals with restrictions on the commercial sale of guns in New York, some of which pre-date Bruen

The Court also denied the petition for certiorari in Greco v. Platkin, a case involving New Jersey’s extreme-risk protection, or red flag, law. 

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Gazzola 

v.

Hochul 

(22A591 – emergency application)

2d Cir.

29-Dec-2022

Application to reverse district court order denying preliminary injunction and enter administrative stay (NY commercial gun regulations)

Denied 18-Jan-2023

Beemer 

v.

Whitmer

(22-586)

 

6th Cir.

21-Dec-2022

Mootness of challenge to Michigan COVID-19 restrictions, including Second Amendment challenge to order closing gun stores

Response due 26-Jan-2023

Greco 

v. 

Platkin

(22-478)

3d Cir. 

13-May-2022

Challenge to NJ extreme-risk-protection law under Fourth Amendment / Younger abstention 

Cert Denied

 

Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Flick v. Rosen

(20-902)

11th Cir.

29-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Fleury v. Massachusetts

(20-1122)

App. Ct. Mass.

2-Nov-20

Challenge to Mass. firearm storage law

Cert Denied

Holloway v. Barr

(20-782)

3d Cir.

3-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Mai v. United States

(20-819)

9th Cir.

9-Dec-20

As-applied challenge to 922(g)(4)

Cert Denied

Folajtar v. Barr

(20-812)

3d Cir.

11-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Greer v. United States

(19-8709)

11th Cir.

8-Jun-2020

Scope of appellate review for Rehaif errors

Decided 14-June-2021

Caniglia v. Strom

(20-157)

1st Cir.

10-Aug-20

Fourth Amendment challenge to gun removal

Decided 17-May-2021

Hobbs v. United States

(20-171)

6th Cir.

13-Aug-20

Guilty plea under 922(g) without knowledge of disqualifying status

 

Cert Denied

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)

Decided 14-June-2021

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

McGinnis v. United States

(20-6046)

5th Cir.

13-Oct-20

As-applied challenge to 922(g)(8)

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

Knowles v. Hart

(20-840)

11th Cir.

17-Dec-20

Fourth Amendment challenge to use of deadly force against person with holstered weapon

Cert Denied

Libertarian Party of Erie County v. Cuomo

(20-1151)

2d Cir.

9-Feb-21

Challenge to New York’s pistol permit regime

Cert Denied

Keahey v. Marquis

(20-1298)

6th Cir.

16-Mar-21

Failure to give self-defense instruction

Cert Denied

Russell v. New Jersey

(20-1419)

N.J. Superior Ct.

2-Apr-21

Challenge to New Jersey’s good cause public carry law

Cert Denied

Reyes-Torres, v. United States

(20-7714)

5th Cir.

5- Apr-2021

Challenge to § 922(g)(5) (federal law barring undocumented immigrants from possessing firearms)

Cert Denied

Weber v. Ohio

(20-1640)

Ohio Sup. Ct.

21-May-21

Challenge to Ohio law barring carrying/using firearms while intoxicated

Cert Denied

Roundtree v. Wisconsin

(20-1706)

Wisc. Sup. Ct.

4-June-2021

Challenge to state law prohibiting firearm possession by non-violent felon

Cert Denied

Harley v. Garland

(21-104)

4th Cir.

22-July-2021

As-applied challenge to § 922(g)(9) (conviction for misdemeanor domestic violence offense)

Cert Denied

Bello v. Rockland County

(21-514)

2d Cir.

4-Oct-2021

Fourth Amendment and due process challenges to New York policies about the return of firearms after disqualification

Cert Denied

P.Z. v. New Jersey

(21-175)

N.J. Superior Ct.

4-Aug-2021

Challenge to N.J. law permitting firearms seizure/prohibiting possession pursuant to DV restraining order

Cert Denied

Hatch v. Minnesota

(21-667)

Minn. Sup. Ct.

1-Nov-2021

Challenge to Minnesota’s requirement that a person get a permit to carry in public

Cert Denied

Zaitzeff v. Seattle

(21-910)

Wash. Ct. App.

16-Dec-2021

Challenge to Seattle ordinance barring the public carry of certain knives

Cert Denied

Marshall v. BATFE

(21-1155)

4th Cir.

17-Feb-2022

Challenge to 4th Circuit decision vacating opinion striking down under-21 handgun purchase ban

Cert Denied

Rodrigues v. County of Hawaii

(21-895)

9th Cir.

13-Dec-2021

Challenge to arrest on weapons’ charges given the Law Enforcement Officers Safety Act (LEOSA)

Cert Denied

Cassidy v. Massachusetts

(21-1249)

Mass. App. Ct.

1-Mar-2022

Challenge to permit requirement for home firearm possession

Cert Denied

Turner v. Brannon-Dortch

(21-1341)

7th Cir.

4-Apr-2022

Challenge to trial questioning about “illegal” gun that was lawfully licensed

Cert Denied

McCloskey, Petitioner

v.

Missouri Office of Chief Disciplinary Counsel

(21-1440)

Mo. Sup. Ct.

9-May-2022

Challenge to attorney discipline for firearms-related conduct on Second Amendment and due process grounds

Cert Denied

New York State Rifle & Pistol Association v. Bruen

(20-843)

2d Cir.

17-Dec-20

Challenge to New York’s good cause public carry regime

Decided 23-June-2022

Association of New Jersey Rifle & Pistol Clubs v. Bruck

(20-1507)

3d Cir.

26-Apr-21

Challenge to New Jersey ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022

Young v. Hawaii

(20-1639)

9th Cir.

11-May-21

Challenge to Hawaii’s restrictive open carry law

Granted, vacated and remanded 30-June 2022

Bianchi v. Frosh

(21-902)

4th Cir.

16-Dec-2021

Challenge to Maryland’s assault weapons ban and to the methodology used for 2A questions

Granted, vacated and remanded 30-June 2022

Duncan v. Bonta

(21-1194)

9th Cir.

28-Feb-2022

Challenge to California ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

Cert Denied

Morin v. Lyver

(21-1160)

1st Cir.

13-Dec-2022

Challenge to Massachusetts’ bar on handgun purchases for those with nonviolent misdemeanors

Granted, vacated and remanded 03-Oct-2022

Gun Owners of America v. Garland

(21-1215)

6th Cir.

3-Mar-2022

Challenge to the bump stock ban

Cert Denied

Whitaker

v.

District of Columbia Concealed Pistol Licensing Review Board

(21-1545)

D.C. Ct. App.

7-Jun-2022

Challenge to DC gun license revocation standard

Cert Denied

Torcivia

v.

Suffolk County

(21-1522)

2d Cir.

31-May-2022

Challenge to warrantless home entry to seize firearms

Cert Denied

McCutchen, et al.; The Modern Sportsman, et al.

v.

United States

(22-25)

Fed Cir.

8-July-2022

Challenge to ATF bump stock ban under 5th Amendment takings clause

Cert Denied

Keith L. Carnes

v.

United States

(22-76)

8th Cir.

26-July-2022

As-applied challenge to 922(g)(3) and definition of “unlawful user of . . . any controlled substance”

Cert Denied

Mashour Howling

v. 

State of Maryland

Md. Ct. App.

13-Oct-2022

Challenge to Maryland jury instructions for possessing firearm after conviction for a crime of violence

Cert Denied

Baldea

v.

City of New York License Division of the NYPD

(21-1495)

NY App. Ct.

10-May-2022

Challenge to NYC gun license denial

Cert Denied

Antonyuk

v.

Nigrelli

(22A557 – emergency application

2d Cir. 

21-Dec-2022

Application to lift stay of district court preliminary injunction pending appeal (NY post-Bruen gun law)

Denied 11-Jan-2023; Justice Alito issued a separate statement (joined by Justice Thomas)




The Perils of Independent Judicial Analysis of Historical Sources

The Bruen majority writes that “[t]he job of judges is not to resolve historical questions in the abstract” (emphasis added).  Rather, the legal inquiry is distinct from traditional historical study in that it demands answers even when history may not speak clearly and relies on adversarial presentation to resolve difficult historical questions.  In other words, judges should generally “decide a case based on the historical record compiled by the parties,” rather than attempt to resolve historical questions by themselves “in the abstract.”

While the majority’s explanation of this principle has some logical force, one practical problem with the approach is that few—if any—judges want to write an opinion which admits that the result may be inconsistent with history but places the blame on the parties.  A lower-court judge who writes such an opinion would be complying with Bruen, but likely also risks appearing unmotivated (by not searching themselves for historical sources) and potentially being overruled and criticized on appeal.  Thus, it is not surprising that judges applying Bruen have largely gone out of their way to explain that they have independently investigated historical sources. 

However, it may be worth considering whether Bruen’s recommendation that judges rely on adversarial presentation was more than a casual aside.  One of the primary dangers of a legal test that focuses heavily on historical sources is the possibility that judges—who we all agree are not, for the most part, trained historians—will fail to treat the historical record with the appropriate level of care and suspicion.  There are many reasons to be concerned that those without specialized expertise will draw the wrong conclusions from their own examination of historical sources.  For example, the temptation to treat history as finite, knowable, and capable of producing a definitive answer to any question is very strong to the untrained eye.  If it’s possible to immediately determine present-day statistics with the click of a mouse, why should historical statistics be any different? 

As I’ve previously written, Judge Suddaby conducted independent analysis of historical laws in the Antonyuk case and peppered his opinions with his own observations about the relevant history.  In his decision in United States v. Quiroz striking down the federal ban on receipt of a firearm while under felony indictment, Judge David Counts considered “other historical analogies that neither the Government nor Defense explore.”  Now, Judge Roger Benitez of the Southern District of California—who is presiding over several ongoing Second Amendment cases, including a challenge to the fee-shifting provision of California’s S.B. 1327 and a challenge to California’s large-capacity magazine ban—has taken a similar course.  At a December 12 status conference, Judge Benitez rebuffed the state’s request for additional time for expert discovery in several Second Amendment cases and remarked that:

I mean, the history and tradition is what it is. I don’t need, you know, [an expert historian] to tell me what his view of the history and tradition is. I see no point in that; nor do I think any additional discovery is necessary or additional expert work is necessary.

Judge Benitez went on to explain that he had conducted his own statistical analysis of U.S. civilian repeating-rifle ownership in the 1800s, by consulting the Winchester company website and anecdotal evidence, and concluded that “there was an awful lot of those weapons that wound up in civilian hands.” 

There are at least two major problems with these observations.  First, they speak to the way that non-historians commonly view the historical record: as something that is factual and susceptible only to one reasonable interpretation.  In Judge Benitez’s view, history is simple, knowable, and factually verifiable. But history does not come to us predetermined and pre-packaged as a set of knowable, objective facts.  Many historical events can be verified, to a high degree of certainty, by consulting contemporaneous sources.  But all history is created, and shaped, by those who initially chronicle it through their own perspective.  As Hayden White has queried:

[D]oes the world, even the social world, ever really come to us as already narrativized, already “speaking itself” from beyond the horizon of our capacity to make scientific sense of it? Or is the fiction of such a world, a world capable of speaking itself and of displaying itself as a form of a story, necessary for the establishment of that moral authority without which the notion of a specifically social reality would be unthinkable?

Noel Carroll, summarizing White’s work, explains that “historical writing cannot afford a perfect simulacrum of the past. It involves selection and filling in; so it is actually a deviation from an exact copy or representation of the succession of events.”  Even those, like Carroll, who believe that historians can uncover objective facts, also accept that history is fundamentally narrative and that “narratives are a form of representation, and, in that sense, they are invented.” 

The history of civilian gun ownership that is chronicled and shaped into a narrative by the Winchester Repeating Arms Company will be vastly different from the history of civilian gun ownership as chronicled and shaped by modern state governments seeking to regulate firearms.  Contrary to Judge Benitez’s suggestion, there’s no reason to think it is easy (or even possible, in some cases) to determine that one of those narratives is objectively correct and one is objectively wrong.  Rather, they are simply different narratives, or different fictions.  The reality may be far from either narrative and may ultimately be unknowable, depending on who else may have attempted to chronicle the specific question at that time in U.S. history. 

Moreover, the fact that someone has studied the history of firearms for a long time does not mean that person already knows all there is to know on the subject.  This perspective overlooks that a historian’s work is never “complete”—new narratives are always unearthed, and must be tested and weighed against the existing ones.

Second, treating history as capable of producing a single, determinative answer, on questions for which it almost certainly cannot, leads to undesirable consequences in the courtroom.  For one, this approach to history magnifies judicial discretion.  The judge who conducts independent historical analysis will, almost certainly, adopt his or her own preferred historical narrative.  It’s hard to see how that approach is any less constraining of judicial discretion than the means-ends scrutiny Bruen rejected as “judge-empowering.”  Perhaps even more importantly, these judicial statements and methods are inconsistent with Bruen itself.  The Supreme Court seems reticent of judges resolving historical controversies in the abstract (and the Court almost certainly does not want a federal judge conducting his own statistical analysis of historical gun ownership using Winchester’s data).  That’s not what Bruen contemplates; in fact, the decision counsels against independent judicial analysis, exhorts judges to rely on party presentation to resolve historical questions, and warns that judges should not “make difficult [] judgments” when they “lack expertise” in a certain area.

Judges should—at the least—consider opposing expert testimony, provide a full and fair opportunity for such testimony to be stress-tested through the adversarial process, and rely upon such testimony rather than their own examination of preferred historical sources.




SCOTUS Update: Antonyuk v. Nigrelli

On January 11, the Supreme Court denied the emergency application filed in Antonyuk v. Nigrelli asking the Court to vacate the Second Circuit’s stay of District Judge Suddaby’s preliminary injunction decision striking down substantial portions of New York’s post-Bruen gun law (the application itself is summarized in more detail in our most recent SCOTUS Gun Watch post).  The application was initially submitted to Justice Sotomayor, the Circuit Justice for the Second Circuit.  Justice Sotomayor referred the application to the full Court, which denied the request to vacate the stay without a written decision. 

However, Justice Alito authored a separate statement regarding the denial which was joined by Justice Thomas.  While the two Justices agreed with the Court’s decision to deny the application out of “respect for the Second Circuit’s procedures in managing its own docket,” they wrote separately to emphasize two points.  First, that the decision does not preclude future emergency “relief if the Second Circuit does not, within a reasonable time, provide an explanation for its stay order or expedite consideration of the appeal.”  And, second, that the denial does not indicate “any view on the merits of the case” and that “[t]he New York law at issue . . . presents novel and serious questions under both the First and the Second Amendments.” 

Another emergency application was filed in Gazzola v. Hochul, a challenge by New York federally-licensed firearms dealers to a long list of state gun regulations that govern areas such as how guns must be stored by licensees prior to sale, how licensees must document compliance with various legal requirements, and the background check process for both gun and ammunition sales.  The plaintiffs in Gazzola bring claims under the Second and Fifth Amendments, and also allege that certain state regulations are preempted by federal law or are unconstitutionally vague.  As to the Second Amendment claim specifically, the district court found that the laws did not regulate conduct protected by the Second Amendment when it denied the TRO and PI (“Plaintiffs fail to present any support for their contention that the individual right secured by the Second Amendment applies to corporations or any other business organizations.”).   The Second Circuit denied the plaintiffs’ motion for a stay pending appeal on December 21.   The application asks the Court to reverse the district court decision denying plaintiffs’ motion for a preliminary injunction and to enter an administrative stay in the case. 

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Gazzola 

v.

Hochul 

(22A591 – emergency application)

2d Cir.

29-Dec-2022

Application to reverse district court order denying preliminary injunction and enter administrative stay (NY commercial gun regulations)

Response filed 11-Jan-2023

Antonyuk

v.

Nigrelli

(22A557 – emergency application

2d Cir. 

21-Dec-2022

Application to lift stay of district court preliminary injunction pending appeal (NY post-Bruen gun law)

Denied 11-Jan-2023; Justice Alito issued a separate statement (joined by Justice Thomas)

Beemer 

v.

Whitmer

(22-586)

 

6th Cir.

21-Dec-2022

Mootness of challenge to Michigan COVID-19 restrictions, including Second Amendment challenge to order closing gun stores

Response due 26-Jan-2023

Greco 

v. 

Platkin

(22-478)

3d Cir. 

13-May-2022

Challenge to NJ extreme-risk-protection law under Fourth Amendment / Younger abstention 

Distributed for conference 13-Jan-2023

 

Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Flick v. Rosen

(20-902)

11th Cir.

29-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Fleury v. Massachusetts

(20-1122)

App. Ct. Mass.

2-Nov-20

Challenge to Mass. firearm storage law

Cert Denied

Holloway v. Barr

(20-782)

3d Cir.

3-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Mai v. United States

(20-819)

9th Cir.

9-Dec-20

As-applied challenge to 922(g)(4)

Cert Denied

Folajtar v. Barr

(20-812)

3d Cir.

11-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Greer v. United States

(19-8709)

11th Cir.

8-Jun-2020

Scope of appellate review for Rehaif errors

Decided 14-June-2021

Caniglia v. Strom

(20-157)

1st Cir.

10-Aug-20

Fourth Amendment challenge to gun removal

Decided 17-May-2021

Hobbs v. United States

(20-171)

6th Cir.

13-Aug-20

Guilty plea under 922(g) without knowledge of disqualifying status

 

Cert Denied

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)

Decided 14-June-2021

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

McGinnis v. United States

(20-6046)

5th Cir.

13-Oct-20

As-applied challenge to 922(g)(8)

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

Knowles v. Hart

(20-840)

11th Cir.

17-Dec-20

Fourth Amendment challenge to use of deadly force against person with holstered weapon

Cert Denied

Libertarian Party of Erie County v. Cuomo

(20-1151)

2d Cir.

9-Feb-21

Challenge to New York’s pistol permit regime

Cert Denied

Keahey v. Marquis

(20-1298)

6th Cir.

16-Mar-21

Failure to give self-defense instruction

Cert Denied

Russell v. New Jersey

(20-1419)

N.J. Superior Ct.

2-Apr-21

Challenge to New Jersey’s good cause public carry law

Cert Denied

Reyes-Torres, v. United States

(20-7714)

5th Cir.

5- Apr-2021

Challenge to § 922(g)(5) (federal law barring undocumented immigrants from possessing firearms)

Cert Denied

Weber v. Ohio

(20-1640)

Ohio Sup. Ct.

21-May-21

Challenge to Ohio law barring carrying/using firearms while intoxicated

Cert Denied

Roundtree v. Wisconsin

(20-1706)

Wisc. Sup. Ct.

4-June-2021

Challenge to state law prohibiting firearm possession by non-violent felon

Cert Denied

Harley v. Garland

(21-104)

4th Cir.

22-July-2021

As-applied challenge to § 922(g)(9) (conviction for misdemeanor domestic violence offense)

Cert Denied

Bello v. Rockland County

(21-514)

2d Cir.

4-Oct-2021

Fourth Amendment and due process challenges to New York policies about the return of firearms after disqualification

Cert Denied

P.Z. v. New Jersey

(21-175)

N.J. Superior Ct.

4-Aug-2021

Challenge to N.J. law permitting firearms seizure/prohibiting possession pursuant to DV restraining order

Cert Denied

Hatch v. Minnesota

(21-667)

Minn. Sup. Ct.

1-Nov-2021

Challenge to Minnesota’s requirement that a person get a permit to carry in public

Cert Denied

Zaitzeff v. Seattle

(21-910)

Wash. Ct. App.

16-Dec-2021

Challenge to Seattle ordinance barring the public carry of certain knives

Cert Denied

Marshall v. BATFE

(21-1155)

4th Cir.

17-Feb-2022

Challenge to 4th Circuit decision vacating opinion striking down under-21 handgun purchase ban

Cert Denied

Rodrigues v. County of Hawaii

(21-895)

9th Cir.

13-Dec-2021

Challenge to arrest on weapons’ charges given the Law Enforcement Officers Safety Act (LEOSA)

Cert Denied

Cassidy v. Massachusetts

(21-1249)

Mass. App. Ct.

1-Mar-2022

Challenge to permit requirement for home firearm possession

Cert Denied

Turner v. Brannon-Dortch

(21-1341)

7th Cir.

4-Apr-2022

Challenge to trial questioning about “illegal” gun that was lawfully licensed

Cert Denied

McCloskey, Petitioner

v.

Missouri Office of Chief Disciplinary Counsel

(21-1440)

Mo. Sup. Ct.

9-May-2022

Challenge to attorney discipline for firearms-related conduct on Second Amendment and due process grounds

Cert Denied

New York State Rifle & Pistol Association v. Bruen

(20-843)

2d Cir.

17-Dec-20

Challenge to New York’s good cause public carry regime

Decided 23-June-2022

Association of New Jersey Rifle & Pistol Clubs v. Bruck

(20-1507)

3d Cir.

26-Apr-21

Challenge to New Jersey ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022

Young v. Hawaii

(20-1639)

9th Cir.

11-May-21

Challenge to Hawaii’s restrictive open carry law

Granted, vacated and remanded 30-June 2022

Bianchi v. Frosh

(21-902)

4th Cir.

16-Dec-2021

Challenge to Maryland’s assault weapons ban and to the methodology used for 2A questions

Granted, vacated and remanded 30-June 2022

Duncan v. Bonta

(21-1194)

9th Cir.

28-Feb-2022

Challenge to California ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

Cert Denied

Morin v. Lyver

(21-1160)

1st Cir.

13-Dec-2022

Challenge to Massachusetts’ bar on handgun purchases for those with nonviolent misdemeanors

Granted, vacated and remanded 03-Oct-2022

Gun Owners of America v. Garland

(21-1215)

6th Cir.

3-Mar-2022

Challenge to the bump stock ban

Cert Denied

Whitaker

v.

District of Columbia Concealed Pistol Licensing Review Board

(21-1545)

D.C. Ct. App.

7-Jun-2022

Challenge to DC gun license revocation standard

Cert Denied

Torcivia

v.

Suffolk County

(21-1522)

2d Cir.

31-May-2022

Challenge to warrantless home entry to seize firearms

Cert Denied

McCutchen, et al.; The Modern Sportsman, et al.

v.

United States

(22-25)

Fed Cir.

8-July-2022

Challenge to ATF bump stock ban under 5th Amendment takings clause

Cert Denied

Keith L. Carnes

v.

United States

(22-76)

8th Cir.

26-July-2022

As-applied challenge to 922(g)(3) and definition of “unlawful user of . . . any controlled substance”

Cert Denied

Mashour Howling

v. 

State of Maryland

Md. Ct. App.

13-Oct-2022

Challenge to Maryland jury instructions for possessing firearm after conviction for a crime of violence

Cert Denied

Baldea

v.

City of New York License Division of the NYPD

(21-1495)

NY App. Ct.

10-May-2022

Challenge to NYC gun license denial

Cert Denied




Private-Property Default Exceptions, Firearms Training, and Multi-Tiered Licensing

This post is part of a mini-symposium on “Private Property and the Second Amendment,” which includes Jake Charles’ post Bruen, Private Property & the Second Amendment, and Robert Leider’s post Pretextually Eliminating the Right to Bear Arms through Gerrymandered Property Rules.  Stay tuned for additional response posts that will run on the blog in the coming weeks.  

In his post Pretextually Eliminating the Right to Bear Arms through Gerrymandered Property Rules, Robert Leider argues that one of New York’s post-Bruen legislative responses—switching the default rule governing when permitted gunowners may carry on private property—is unconstitutional.  Professor Leider professes that he is “genuinely unsure whether a state has the power to change the default rule on all private property.”  However, he argues that the law New York passed, and the one New Jersey recently enacted, do not actually change the default rule as they claim to do because the laws exempt various groups from compliance.  In other words, certain individuals are excused from the private-property default rule by virtue of their current or past position of employment or for other reasons, and those groups may carry on private property even when the property owner has not posted a sign specifically allowing firearms to be carried.  Functionally, the New York law does this by exempting such individuals from the criminal statute prohibiting possession of a weapon in a “restricted location.”  

While Professor Leider observes that New Jersey’s statute is different from, and potentially broader than, New York’s in terms of the exemptions it grants from the private-property default rule, this response focuses only on the New York law passed in July.

New York exempts the following groups from the “restricted location” provision:

(a) police officers as defined in section 1.20 of the criminal procedure law;

(b) persons who are designated peace officers as defined in section 2.10 of the criminal procedure law;

(c) persons who were employed as police officers as defined in section 1.20 of the criminal procedure law, but are retired;

(d) security guards as defined by and registered under article seven-A of the general business law who has been granted a special armed registration card, while at the location of their employment and during their work hours as such a security guard;

(e) active-duty military personnel;

(f) persons licensed under paragraph (c), (d) or (e) of subdivision two of section 400.00 of this chapter while in the course of his or her official duties;

(g) persons lawfully engaged in hunting activity.

One common thread uniting these groups is that most have previously undergone some form of heightened firearms training, beyond what is required to obtain a concealed-carry license in New York.  New York now requires that concealed-carry applicants complete 18 total hours of training, including “a minimum of two hours of a live-fire range training course,” and meet certain proficiency benchmarks.  But the exempted categories of individuals have completed firearms training that often vastly exceeds this requirement, in both time and scope.  The NYPD explains that recruits “must successfully complete fifteen days of training at the Firearms & Tactics Section . . . [which] includes five days of basic firearms instruction, and ten days of tactical training.”  The state’s Department of Criminal Justice Services provides that, in order to become a registered security guard, applicants “must have a valid New York State pistol license . . . and must complete a 47-Hour Firearms Training Course.”  Hunters must complete a 7-hour training course that covers firearms-safety topics, although completion of that course “[g]enerally . . . does not qualify [one] to obtain a pistol permit in New York State.”   Designated peace officers are required by statute to undergo additional training, and active-duty military members will, in all likelihood, have completed quite lengthy and challenging small-arms training

While a comprehensive examination of each category is beyond the scope of this post, the point is that the vast majority of individuals exempted from the New York provision were required to complete additional firearms training beyond even what the state now mandates for a concealed-carry handgun license, to become part of that category in the first place.  Category (f)—which includes state court judges and messengers employed by banking institutions—appears to be the only group exempted under the law with no express additional training requirement.  The listed categories also likely encompass most New York citizens who would have been required to complete additional firearms training (although further research would be necessary to verify, for example, whether groups such as prison guards are fully covered by the “designated peace officer” exemption).  Notably, one might also expect that the exempted individuals are among the most likely in the state to have undergone implicit or unconscious bias training; for example, the NYPD began a comprehensive training program on those issues in 2018. 

Perhaps the easiest response here is that the statute exempts not only active-duty police officers but, as Professor Leider observes, also retired police officers—who, presumably, are not required to be up-to-date with firearms training in retirement.  However, relying solely on the retired police officer exemption is a slender reed upon which to base a claim of “clear” pretext.  Moreover, a retired police officer will have completed numerous hours of on-the-job firearms training throughout his or her career, and exempting this group may simply recognize the reality that a certain cumulative volume of training is considered sufficient (even without any ongoing requirement). 

One should not be so certain then, that the exemptions themselves are evidence that the law is a “pretext . . . overtly defying Bruen.”  Bruen itself endorsed numerous state licensing laws with objective training requirements, and the concurring opinion by Chief Justice Roberts and Justice Kavanaugh specifically deemed lawful shall-issue regimes that require “training in firearms handling and in laws regarding the use of force, among other possible requirements.”  Bruen has no problem with training requirements generally—although the majority opinion is clear that licensing rules could be subject to an as-applied challenge if overly burdensome in practice.  Bruen also does not speak to, and certainly does not clearly prohibit, a multi-tiered licensing system where the ability to carry in certain locations is dependent upon completing some extra level of training beyond the base level required for a permit (one can imagine a similar system being used in the sensitive-places context, where only those with enhanced training may carry in locations where guns are generally prohibited).  The Court might have issues with such a framework, which few if any states currently utilize, but Bruen simply doesn’t expressly say anything one way or another about its constitutionality. 

There also doesn’t seem to be a historical problem with a multi-tiered licensing system, at least not under Bruen’s analysis.  All gun licensing is of relatively recent vintage, but that didn’t stop the Court from endorsing a broad range of objective requirements in the licensing context.  And, as Jake Charles has observed (and Professor Leider agrees), “New York freely allows these property owners to opt-in to be a gun-friendly zone.”  Setting a default rule that accounts for the fact that private property owners may prefer different approaches for those with, and without, extensive firearms training is still a default from which owners may deviate—and, notably, it is a default more accommodating of public carry than banning all permitholders from carrying without express consent of the owner.

New York’s law, of course, does not enact a multi-tiered system based directly on past training.  But the exceptions to the “restricted location” provision accomplish the same functional end: the individuals who are allowed to carry even in businesses where owners have not given permission are, overwhelmingly, those who have received comprehensive firearms training above and beyond the ordinary license holder.  New York’s approach may be the only practical way for a state to enact this system in the near term.  By exempting categories of individuals who have completed prior advanced training by virtue of their employment status, or otherwise, the state has created a separate licensing “tier” without the administrative burden (on both the state and license applicants) of verifying past training-course completion.  By focusing on those who are not exempted, and failing to closely examine why the listed groups are exempted, Professor Leider concludes far too quickly that this aspect of New York’s law merely caters to “politically favored groups.”

If New York had exempted only those individuals with a certain number of documented hours of firearms training within the past 10 years from the “restricted location” provision, would that law also be “clearly a pretext”?  To the contrary, nothing in Bruen prohibits such an approach, or a similar regulatory system which ties public carry in certain locations to heightened training.  It’s not clear to me how this approach would ultimately fare under Bruen, and the state may need to remove exemptions for certain groups (such as state court judges) and also offer enhanced training to members of the general public that would similarly exempt them from the “restricted location” ban.  But the possibility that objectively-grounded training considerations underlie New York’s list of exempted groups is one reason to doubt Professor Leider’s assertion that New York’s private-property regulation is clearly pretextual and should be struck down entirely on that basis. 




SCOTUS Gun Watch – Week of 1/9/23

In Antonyuk v. Nigrelli (a challenge to New York’s post-Bruen gun law that we’ve covered here, here, here, and here), the plaintiffs’ application asking the Court to vacate the Second Circuit’s stay of the district court order striking down large portions of the law remains outstanding.  Meanwhile, opening briefs in the Second Circuit appeal are due today, January 9

The state filed its opposition to the application on January 3, and the petitioners filed their reply on January 5.  New York argues in part that the “Court ordinarily awaits percolation of legal issues in the lower courts before granting review and would benefit from such percolation here.”  The state also asserts that the Second Circuit did not err in granting the stay because the state showed a likelihood of success on the merits due to errors in the district court’s decision, because a stay is in the public interest, and because no irreparable harm will result.  In their reply, the petitioners contend that the interlocutory posture of the case should not preclude Supreme Court review and “that ‘percolation’ of Second Amendment jurisprudence both prior to Heller . . and after Heller . . . did not advance jurisprudence in this area, but instead created mountains of unprincipled and atextual precedents that th[e] Court was required to cast aside.”  The petitioners further argue that the Second Circuit applied the wrong substantive legal standard in determining whether to a grant a stay (namely, they argue that the Court should have required more than a “possibility” of success on the merits to issue the stay). 

One notable item from the briefing is the parties’ dispute over whether the district court applied Bruen correctly to New York’s list of sensitive places.  The state argues that the lower court “invented metrics of relevancy and representativeness, speculative hypotheticals, and an improper demand that [it] identify examples of historical regulations that are both numerous and identical” to the current law.  In their reply, the petitioners assert that “the district court’s analysis using census data was drawn directly from this Court’s methodology.”  In other words, the petitioners read Bruen‘s use of population density in its analysis of territorial laws to require courts to use census data to evaluate all historical sources—only if laws cover a sufficient portion of the U.S. population at the time are they “analogues” that can support a modern regulation.  It’s certainly not clear from Bruen whether census data should be used to evaluate all historical laws (as opposed to just those from territories, or states with very low populations) and, if so, what the relevant population threshold is.  Few lower courts have used census data when applying Bruen.

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Antonyuk

v.

Nigrelli

(22A557 – emergency application

2d Cir. 

21-Dec-2022

Application to lift stay of district court preliminary injunction pending appeal (NY post-Bruen gun law)

Fully briefed

Beemer 

v.

Whitmer

(22-586)

 

6th Cir.

21-Dec-2022

Mootness of challenge to Michigan COVID-19 restrictions, including Second Amendment challenge to order closing gun stores

Response due 26-Jan-2023

Greco 

v. 

Platkin

(22-478)

3d Cir. 

13-May-2022

Challenge to NJ extreme-risk-protection law under Fourth Amendment / Younger abstention 

Distributed for conference 13-Jan-2023

 

Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Flick v. Rosen

(20-902)

11th Cir.

29-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Fleury v. Massachusetts

(20-1122)

App. Ct. Mass.

2-Nov-20

Challenge to Mass. firearm storage law

Cert Denied

Holloway v. Barr

(20-782)

3d Cir.

3-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Mai v. United States

(20-819)

9th Cir.

9-Dec-20

As-applied challenge to 922(g)(4)

Cert Denied

Folajtar v. Barr

(20-812)

3d Cir.

11-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Greer v. United States

(19-8709)

11th Cir.

8-Jun-2020

Scope of appellate review for Rehaif errors

Decided 14-June-2021

Caniglia v. Strom

(20-157)

1st Cir.

10-Aug-20

Fourth Amendment challenge to gun removal

Decided 17-May-2021

Hobbs v. United States

(20-171)

6th Cir.

13-Aug-20

Guilty plea under 922(g) without knowledge of disqualifying status

 

Cert Denied

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)

Decided 14-June-2021

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

McGinnis v. United States

(20-6046)

5th Cir.

13-Oct-20

As-applied challenge to 922(g)(8)

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

Knowles v. Hart

(20-840)

11th Cir.

17-Dec-20

Fourth Amendment challenge to use of deadly force against person with holstered weapon

Cert Denied

Libertarian Party of Erie County v. Cuomo

(20-1151)

2d Cir.

9-Feb-21

Challenge to New York’s pistol permit regime

Cert Denied

Keahey v. Marquis

(20-1298)

6th Cir.

16-Mar-21

Failure to give self-defense instruction

Cert Denied

Russell v. New Jersey

(20-1419)

N.J. Superior Ct.

2-Apr-21

Challenge to New Jersey’s good cause public carry law

Cert Denied

Reyes-Torres, v. United States

(20-7714)

5th Cir.

5- Apr-2021

Challenge to § 922(g)(5) (federal law barring undocumented immigrants from possessing firearms)

Cert Denied

Weber v. Ohio

(20-1640)

Ohio Sup. Ct.

21-May-21

Challenge to Ohio law barring carrying/using firearms while intoxicated

Cert Denied

Roundtree v. Wisconsin

(20-1706)

Wisc. Sup. Ct.

4-June-2021

Challenge to state law prohibiting firearm possession by non-violent felon

Cert Denied

Harley v. Garland

(21-104)

4th Cir.

22-July-2021

As-applied challenge to § 922(g)(9) (conviction for misdemeanor domestic violence offense)

Cert Denied

Bello v. Rockland County

(21-514)

2d Cir.

4-Oct-2021

Fourth Amendment and due process challenges to New York policies about the return of firearms after disqualification

Cert Denied

P.Z. v. New Jersey

(21-175)

N.J. Superior Ct.

4-Aug-2021

Challenge to N.J. law permitting firearms seizure/prohibiting possession pursuant to DV restraining order

Cert Denied

Hatch v. Minnesota

(21-667)

Minn. Sup. Ct.

1-Nov-2021

Challenge to Minnesota’s requirement that a person get a permit to carry in public

Cert Denied

Zaitzeff v. Seattle

(21-910)

Wash. Ct. App.

16-Dec-2021

Challenge to Seattle ordinance barring the public carry of certain knives

Cert Denied

Marshall v. BATFE

(21-1155)

4th Cir.

17-Feb-2022

Challenge to 4th Circuit decision vacating opinion striking down under-21 handgun purchase ban

Cert Denied

Rodrigues v. County of Hawaii

(21-895)

9th Cir.

13-Dec-2021

Challenge to arrest on weapons’ charges given the Law Enforcement Officers Safety Act (LEOSA)

Cert Denied

Cassidy v. Massachusetts

(21-1249)

Mass. App. Ct.

1-Mar-2022

Challenge to permit requirement for home firearm possession

Cert Denied

Turner v. Brannon-Dortch

(21-1341)

7th Cir.

4-Apr-2022

Challenge to trial questioning about “illegal” gun that was lawfully licensed

Cert Denied

McCloskey, Petitioner

v.

Missouri Office of Chief Disciplinary Counsel

(21-1440)

Mo. Sup. Ct.

9-May-2022

Challenge to attorney discipline for firearms-related conduct on Second Amendment and due process grounds

Cert Denied

New York State Rifle & Pistol Association v. Bruen

(20-843)

2d Cir.

17-Dec-20

Challenge to New York’s good cause public carry regime

Decided 23-June-2022

Association of New Jersey Rifle & Pistol Clubs v. Bruck

(20-1507)

3d Cir.

26-Apr-21

Challenge to New Jersey ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022

Young v. Hawaii

(20-1639)

9th Cir.

11-May-21

Challenge to Hawaii’s restrictive open carry law

Granted, vacated and remanded 30-June 2022

Bianchi v. Frosh

(21-902)

4th Cir.

16-Dec-2021

Challenge to Maryland’s assault weapons ban and to the methodology used for 2A questions

Granted, vacated and remanded 30-June 2022

Duncan v. Bonta

(21-1194)

9th Cir.

28-Feb-2022

Challenge to California ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

Cert Denied

Morin v. Lyver

(21-1160)

1st Cir.

13-Dec-2022

Challenge to Massachusetts’ bar on handgun purchases for those with nonviolent misdemeanors

Granted, vacated and remanded 03-Oct-2022

Gun Owners of America v. Garland

(21-1215)

6th Cir.

3-Mar-2022

Challenge to the bump stock ban

Cert Denied

Whitaker

v.

District of Columbia Concealed Pistol Licensing Review Board

(21-1545)

D.C. Ct. App.

7-Jun-2022

Challenge to DC gun license revocation standard

Cert Denied

Torcivia

v.

Suffolk County

(21-1522)

2d Cir.

31-May-2022

Challenge to warrantless home entry to seize firearms

Cert Denied

McCutchen, et al.; The Modern Sportsman, et al.

v.

United States

(22-25)

Fed Cir.

8-July-2022

Challenge to ATF bump stock ban under 5th Amendment takings clause

Cert Denied

Keith L. Carnes

v.

United States

(22-76)

8th Cir.

26-July-2022

As-applied challenge to 922(g)(3) and definition of “unlawful user of . . . any controlled substance”

Cert Denied

Mashour Howling

v. 

State of Maryland

Md. Ct. App.

13-Oct-2022

Challenge to Maryland jury instructions for possessing firearm after conviction for a crime of violence

Cert Denied

Baldea

v.

City of New York License Division of the NYPD

(21-1495)

NY App. Ct.

10-May-2022

Challenge to NYC gun license denial

Cert Denied




SCOTUS Gun Watch – Week of 1/3/23

The big news at SCOTUS on the Second Amendment front is that the plaintiffs in Antonyuk v. Nigrelli (a challenge to New York’s post-Bruen gun law that we’ve covered here, here, here, and here) have filed an application with the Supreme Court asking to vacate the Second Circuit’s decision to stay a district court order striking down large portions of the law, pending the circuit’s decision on appeal.  The application was submitted to Justice Sotomayor, the Circuit Justice for the Second Circuit.  On December 27, Justice Sotomayor requested a response from the state, which is due by 4:00 pm today, January 3.  Justice Sotomayor will then either deny the application or refer it to the full court for consideration.

We’ve also added a new case to the tracker:  Beemer v. Whitmer, a COVID-19-related case that includes a Second Amendment challenge to the Michigan Governor’s closure of gun stores during the early pandemic.  The issue in Beemer is whether the claims are moot or whether they are “capable of repetition.”

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Antonyuk

v.

Nigrelli

(22A557 – emergency application

2d Cir. 

21-Dec-2022

Application to lift stay of district court preliminary injunction pending appeal (NY post-Bruen gun law)

Response requested, due 3-Jan-2023

Beemer 

v.

Whitmer

(22-586)

 

6th Cir.

21-Dec-2022

Mootness of challenge to Michigan COVID-19 restrictions, including Second Amendment challenge to order closing gun stores

Response due 26-Jan-2023

Greco 

v. 

Platkin

(22-478)

3d Cir. 

13-May-2022

Challenge to NJ extreme-risk-protection law under Fourth Amendment / Younger abstention 

Distributed for conference 13-Jan-2023

 

Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Flick v. Rosen

(20-902)

11th Cir.

29-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Fleury v. Massachusetts

(20-1122)

App. Ct. Mass.

2-Nov-20

Challenge to Mass. firearm storage law

Cert Denied

Holloway v. Barr

(20-782)

3d Cir.

3-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Mai v. United States

(20-819)

9th Cir.

9-Dec-20

As-applied challenge to 922(g)(4)

Cert Denied

Folajtar v. Barr

(20-812)

3d Cir.

11-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Greer v. United States

(19-8709)

11th Cir.

8-Jun-2020

Scope of appellate review for Rehaif errors

Decided 14-June-2021

Caniglia v. Strom

(20-157)

1st Cir.

10-Aug-20

Fourth Amendment challenge to gun removal

Decided 17-May-2021

Hobbs v. United States

(20-171)

6th Cir.

13-Aug-20

Guilty plea under 922(g) without knowledge of disqualifying status

 

Cert Denied

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)

Decided 14-June-2021

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

McGinnis v. United States

(20-6046)

5th Cir.

13-Oct-20

As-applied challenge to 922(g)(8)

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

Knowles v. Hart

(20-840)

11th Cir.

17-Dec-20

Fourth Amendment challenge to use of deadly force against person with holstered weapon

Cert Denied

Libertarian Party of Erie County v. Cuomo

(20-1151)

2d Cir.

9-Feb-21

Challenge to New York’s pistol permit regime

Cert Denied

Keahey v. Marquis

(20-1298)

6th Cir.

16-Mar-21

Failure to give self-defense instruction

Cert Denied

Russell v. New Jersey

(20-1419)

N.J. Superior Ct.

2-Apr-21

Challenge to New Jersey’s good cause public carry law

Cert Denied

Reyes-Torres, v. United States

(20-7714)

5th Cir.

5- Apr-2021

Challenge to § 922(g)(5) (federal law barring undocumented immigrants from possessing firearms)

Cert Denied

Weber v. Ohio

(20-1640)

Ohio Sup. Ct.

21-May-21

Challenge to Ohio law barring carrying/using firearms while intoxicated

Cert Denied

Roundtree v. Wisconsin

(20-1706)

Wisc. Sup. Ct.

4-June-2021

Challenge to state law prohibiting firearm possession by non-violent felon

Cert Denied

Harley v. Garland

(21-104)

4th Cir.

22-July-2021

As-applied challenge to § 922(g)(9) (conviction for misdemeanor domestic violence offense)

Cert Denied

Bello v. Rockland County

(21-514)

2d Cir.

4-Oct-2021

Fourth Amendment and due process challenges to New York policies about the return of firearms after disqualification

Cert Denied

P.Z. v. New Jersey

(21-175)

N.J. Superior Ct.

4-Aug-2021

Challenge to N.J. law permitting firearms seizure/prohibiting possession pursuant to DV restraining order

Cert Denied

Hatch v. Minnesota

(21-667)

Minn. Sup. Ct.

1-Nov-2021

Challenge to Minnesota’s requirement that a person get a permit to carry in public

Cert Denied

Zaitzeff v. Seattle

(21-910)

Wash. Ct. App.

16-Dec-2021

Challenge to Seattle ordinance barring the public carry of certain knives

Cert Denied

Marshall v. BATFE

(21-1155)

4th Cir.

17-Feb-2022

Challenge to 4th Circuit decision vacating opinion striking down under-21 handgun purchase ban

Cert Denied

Rodrigues v. County of Hawaii

(21-895)

9th Cir.

13-Dec-2021

Challenge to arrest on weapons’ charges given the Law Enforcement Officers Safety Act (LEOSA)

Cert Denied

Cassidy v. Massachusetts

(21-1249)

Mass. App. Ct.

1-Mar-2022

Challenge to permit requirement for home firearm possession

Cert Denied

Turner v. Brannon-Dortch

(21-1341)

7th Cir.

4-Apr-2022

Challenge to trial questioning about “illegal” gun that was lawfully licensed

Cert Denied

McCloskey, Petitioner

v.

Missouri Office of Chief Disciplinary Counsel

(21-1440)

Mo. Sup. Ct.

9-May-2022

Challenge to attorney discipline for firearms-related conduct on Second Amendment and due process grounds

Cert Denied

New York State Rifle & Pistol Association v. Bruen

(20-843)

2d Cir.

17-Dec-20

Challenge to New York’s good cause public carry regime

Decided 23-June-2022

Association of New Jersey Rifle & Pistol Clubs v. Bruck

(20-1507)

3d Cir.

26-Apr-21

Challenge to New Jersey ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022

Young v. Hawaii

(20-1639)

9th Cir.

11-May-21

Challenge to Hawaii’s restrictive open carry law

Granted, vacated and remanded 30-June 2022

Bianchi v. Frosh

(21-902)

4th Cir.

16-Dec-2021

Challenge to Maryland’s assault weapons ban and to the methodology used for 2A questions

Granted, vacated and remanded 30-June 2022

Duncan v. Bonta

(21-1194)

9th Cir.

28-Feb-2022

Challenge to California ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

Cert Denied

Morin v. Lyver

(21-1160)

1st Cir.

13-Dec-2022

Challenge to Massachusetts’ bar on handgun purchases for those with nonviolent misdemeanors

Granted, vacated and remanded 03-Oct-2022

Gun Owners of America v. Garland

(21-1215)

6th Cir.

3-Mar-2022

Challenge to the bump stock ban

Cert Denied

Whitaker

v.

District of Columbia Concealed Pistol Licensing Review Board

(21-1545)

D.C. Ct. App.

7-Jun-2022

Challenge to DC gun license revocation standard

Cert Denied

Torcivia

v.

Suffolk County

(21-1522)

2d Cir.

31-May-2022

Challenge to warrantless home entry to seize firearms

Cert Denied

McCutchen, et al.; The Modern Sportsman, et al.

v.

United States

(22-25)

Fed Cir.

8-July-2022

Challenge to ATF bump stock ban under 5th Amendment takings clause

Cert Denied

Keith L. Carnes

v.

United States

(22-76)

8th Cir.

26-July-2022

As-applied challenge to 922(g)(3) and definition of “unlawful user of . . . any controlled substance”

Cert Denied

Mashour Howling

v. 

State of Maryland

Md. Ct. App.

13-Oct-2022

Challenge to Maryland jury instructions for possessing firearm after conviction for a crime of violence

Cert Denied

Baldea

v.

City of New York License Division of the NYPD

(21-1495)

NY App. Ct.

10-May-2022

Challenge to NYC gun license denial

Cert Denied




Top 10 Posts of the Year for 2022

The past year has been the busiest in the last decade, if not longer, for the field of firearms law.  After holding oral arguments in November 2021, the Supreme Court issued its first major Second Amendment decision in 12 years in New York State Rifle & Pistol Association v. Bruen on June 23, 2022.  Bruen announced a new methodology for deciding Second Amendment cases going forward, with a distinct focus on the history and tradition of American gun regulation.  Lower courts have now decided a number of cases under Bruen, with widely-varying results.  The decision was closely followed by the first major federal gun legislation in decades, the Bipartisan Safer Communities Act

We’ve discussed and analyzed many of these issues, and related judicial decisions and developments, on the blog this year.  Looking back over that coverage, below are our top ten most-read blog posts of the year:

  1. The Dangerous Expansion of Stand-Your-Ground Laws and its Racial Implications, by Kami Chavis
  2. Illegal Firearm Possession: A Reflection on Policies and Practices that May Miss the Mark and Exacerbate Racial Disparity in the Justice System, by David Olson
  3. Litigation Highlight: Antonyuk v. Bruen, by Andrew Willinger
  4. Assault Weapon Bans, Grandfathered Guns, and Market Prices, by Dru Stevenson
  5. Bruen, Analogies, and the Quest for Goldilocks History, by Jake Charles
  6. History in Practice: How Have Lower Courts Applied Bruen So Far?, by Andrew Willinger
  7. Text, History, and Tradition: A Workable Test that Stays True to the Constitution, by Joseph Greenlee
  8. Guns and Banks: New Laws & Policies, by Dru Stevenson
  9. NYSRPA v. Bruen and the Future of the Sensitive Places Doctrine, by Carina Bentata Gryting and Mark Anthony Frassetto
  10. Gun Rights, Property Rights, and Takings, by Ilya Somin



Pretextually Eliminating the Right to Bear Arms through Gerrymandered Property Rules

This is a guest post that is part of a mini-symposium on “Private Property and the Second Amendment,” responding to Jake Charles’ earlier post Bruen, Private Property & the Second Amendment.  Stay tuned for additional response posts that will run on the blog in the coming weeks.  

When the Supreme Court required public school desegregation in Brown v. Board of Education, some Southern jurisdictions resisted through legal chicanery.  In Virginia, the Prince Edward County school district “closed” its public schools to avoid integration, while setting up government-funded private schools that were “private” in name only.  The Supreme Court was not amused.  In Griffin v. School Board, the Court saw the closure for what it was, and it ordered Prince Edward County to reopen its schools on an integrated basis.

A similar game of legal chicanery is playing out in many Democratic states, which have launched massive resistance to the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen.  That decision held that the Second Amendment protects the right of law-abiding citizens to carry arms outside the home for self-defense.  Bruen recognized that states may reasonably regulate the right to bear arms using their police powers.  But they may not deny that right altogether to law-abiding Americans.  On this, Bruen followed the great weight of early American court precedent. 

In response to Bruen, some states have tried to engineer de facto bans on public carry.  These states have employed many mechanisms, such as requiring permits with high application fees, forcing permit applicants to disclose all their social media accounts, imposing time-consuming and expensive training requirements, and declaring as many places as possible to be “sensitive places” or “gun-free” zones.  But the most successful of the resistance measures has been to prohibit permit holders from possessing firearms on all private property unless the person in control of the property has granted express permission to enter with a weapon.  New York passed such a law in July, and New Jersey’s legislature passed a statute containing a similar provision this month.  California has also considered adopting it, and Maryland might consider it when Democrats take full control of state government in January.

By encouraging legislatures to presumptively ban firearms on all private property, prominent scholars, including Jacob Charles and Ian Ayres and Frederick Vars, claim to have found a constitutional loophole to nullify the practical effect of Bruen.  Everyone agrees that private property holders have the right to control their property.  If they want to allow guns, they may.  If they want to ban them, they may do that, too.  But why, these scholars ask, should the default rule only be that private property owners must allow guns unless they take affirmative steps to ban them?  In their view, states should have the power to flip the default rule so that guns are banned unless property owners say otherwise.

Flipping the default rule creates a de facto ban on public carry because most private property owners do not post signs either allowing or restricting firearms.  A person who cannot carry a firearm on private property cannot go about most life activities while possessing a firearm.  A gun permit holder cannot get groceries, go to a store, get a cup of coffee, use the restroom, or stop for gas while carrying a loaded firearm for self-defense.  Ironically (as I explained here), New York’s current gun carry regulations are far more restrictive than before Bruen was decided.

Although a default no-carry rule results in a drastic near-complete ban on public carry, it is not so easy to explain why this is unconstitutional.  There is no constitutional right to bear arms on private property.  The Second Amendment grants a right against the government, not a right against private individuals.  With limited exceptions, people do not have to permit guns on their property if they do not want them there.  Moreover, the Second Amendment appears to have nothing to say about which default rule a state has.  The selection of a default rule seems to be committed to a state’s police power. 

The counterarguments provided to date are unpersuasive.  In Antonyuk v. Hochul, Judge Suddaby temporarily restrained New York’s private property rules.  He argued that New York “is now making a decision for private property owners” by presumptively banning guns on private property.  But this seems wrong for two reasons.  First, New York is not deciding for private property owners.  As Jacob Charles correctly points out, private property owners may still allow guns on their property by posting a sign.  Second, one could make the same claim about the traditional default rule:  are those states deciding that guns may be carried on private property?  Obviously not:  private property owners in those states can ban guns, also by posting a sign.

Another argument that some have raised is that there is no historical tradition of presumptively banning guns on private property.  This argument, too, is unpersuasive.  Bruen does not freeze a state’s regulatory power to only those laws that have historically existed.  Although I cannot explain my reasons here, those who read Bruen to do that are, in my view, seriously misreading the decision.  Worse, even if Bruen said this, this argument is an appeal to Bruen’s authority.  It does not explain, as a matter of first principles, why New York’s law is unconstitutional.  Finally, while there may not be many examples of a presumptive ban on carrying firearms on private property, the historical record is not one-sided.  Alabama banned carrying pistols on another person’s property in the early 1900s, which its state supreme court upheld.  Some states (including pro-gun states like Louisiana and South Carolina) have presumptively banned carrying handguns inside another person’s home.  Granted, homes are not property generally open to the public.  But New York’s law applies both to homes and to businesses, so it is not obviously unconstitutional in all its applications. 

For my part, I am genuinely unsure whether a state has the power to change the default rule on all private property.  But conceding for argument’s sake that a state does have this power, I offer a different reason why New York’s law (and the law New Jersey is poised to enact) is unconstitutional.

Both states have so gerrymandered their private property law that their new law is nothing more than a pretext to deprive people of their right of public carry.  New York and New Jersey claim that they are switching the default rule so that carrying firearms on private property is banned, unless allowed by the property owner.  But this is not true.  A law switching the default rule—that actually changed the default rule—would prohibit the carrying of firearms by everyone, unless the person (1) had the express permission of the property owner or (2) was justified in committing what otherwise would be a trespass.

New York’s law does not come close.  New York exempts retired law enforcement officers from its private property ban.  These private citizens have no law enforcement powers and act with no governmental authority.  If the presumption is that carrying firearms is prohibited unless allowed, what gives retired law enforcement officers the power to violate private property rights?  Shouldn’t the default rule also apply to them?

A true switch of the default rule would also apply to active law enforcement officers.  Law enforcement officers, whether on or off duty, have no authority to violate private property rights unless they have a warrant or they are justified in committing a trespass (e.g., apprehending a fleeing felon).  For example, an on-duty officer getting a coffee at a local convenience store is a trespasser if he brings his weapons onto store property, against the owner’s wishes.  What is true of on-duty law enforcement officers is also true, a fortiori, of those who are off-duty and acting privately.  Indeed, many locations, such as stadiums and amusement parks, prohibit the possession of weapons by law enforcement officers who are not engaged in their official duties.  A law that truly changed the presumption would mean that on-duty law enforcement officers, no less than private citizens, would need express permission to bring their guns onto private property.

New Jersey’s law, meanwhile, is larded up with other exceptions.  In addition to active and retired police officers, New Jersey exempts from its default private property ban:  federal, county, and municipal prosecutors; the Attorney General, assistant attorney general, and deputy attorney general; judges of all kinds, including judges of the tax court, workers’ compensation judges, and administrative law judges; and hunters and target shooters.  So retired police, prosecutors, and tax court judges can enter grocery stores and shopping malls with concealed weapons (unless otherwise posted), while public defenders, stalking victims, and individuals with death threats would face felony charges for violating their permit restrictions.

If New York’s and New Jersey’s purported interest in presumptively banning firearms on all private property is to respect the property owner’s wishes, then these laws are grossly underinclusive.  Neither state’s law accomplishes the ends that they offer in defense. 

Although underinclusiveness does not necessarily entail unconstitutionality, it is a constitutional problem here.  Underinclusive laws can run in two directions.  Sometimes, “a legislature may deal with one part of a problem without addressing all of it.”  Erznoznik v. Jacksonville (citing Williamson v. Lee Optical Co.).  The Supreme Court has upheld laws that are underinclusive in this way.  Other times, however, underinclusiveness is a sign that the law is a pretext for accomplishing impermissible ends.  For example, in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, a city in Florida passed an ordinance that nominally regulated animal killings; but the ordinance was gerrymandered to prohibit only a particular religious practice involving animal sacrifice while allowing virtually every other type of animal killing.  The Supreme Court struck down that underinclusive law as a violation of the First Amendment’s Free Exercise Clause. 

New York’s and New Jersey’s new private-property default rule is similarly gerrymandered and pretextual.  On its face, these laws do not switch the property default rule for gun carrying by politically favored groups (e.g., retired and off-duty police).  This shows that they are not actually making a generally applicable default rule that a person may not bring a gun onto another person’s property without express consent.  Instead, these laws target gun carry by one group only:  civilians without prior law enforcement experience.  And what is clear from the face of the statute is confirmed by public statements of government officials, who openly admit that the law is part of a regulatory regime designed to prohibit most private citizens from carrying their weapons virtually anywhere.  When asked where a gun permit holder could carry his firearm under the new law, Gov. Kathy Hochul (D-NY) forthrightly answered “probably some streets.” 

Because these laws are clearly a pretext, they are not a valid regulation of the right to bear arms.  If a state wants to change its default rule to prohibit firearms on private property, it can do so.  But it must actually change the default rule.  Otherwise, a federal court should recognize New York’s and New Jersey’s law for what it is:  a shadow ban against most private citizens carrying firearms.  These states are overtly defying Bruen, and their laws should meet the same fate as Prince Edward County’s segregated “private” school system.




Scholarship Highlight: Text, History, and Tradition on the Rise After Bruen?

Some believe that Bruen decision may mark a larger shift toward historicism, and historical regulatory practice, in constitutional interpretation.  In an upcoming article in the Duke Journal of Constitutional Law and Public Policy, Clay Calvert and Mary-Rose Papandrea consider what the Court’s rejection of means-ends scrutiny in Bruen signals for other areas of constitutional law—namely, free speech challenges under the First Amendment. 

The End of Balancing? Text, History & Tradition in First Amendment Speech Cases after Bruen, 18 Duke J. of Const. L. & Pub. Pol’y (forthcoming 2023)

Abstract:

This Article examines the potential impact on First Amendment free-speech jurisprudence of the U.S. Supreme Court’s increasing reliance on text, history, and tradition in 2022 decisions such as New York State Rifle & Pistol Association v. Bruen. In Bruen, the Court embraced a new test for examining Second Amendment cases. It concentrates on whether there is a historical tradition of regulating the conduct in question, and it eliminates any use of constitutionally common means-end standards of review such as strict and intermediate scrutiny. Those two scrutiny standards often guide the Court’s free-speech decisions. The Bruen majority, however, asserted that its novel Second Amendment test eliminating their usage actually “comports” and “accords with” how the Court protects free-speech rights. This Article initially illustrates how that assertion is partly correct but largely inaccurate. It then explores critical problems that likely would arise were the Court to impose its text, history, and tradition methodology from Bruen on First Amendment speech cases. In doing so, the Article addresses how this originalistic approach might affect the continued viability of the Court’s actual malice standard in defamation law adopted nearly sixty years ago in New York Times Co. v. Sullivan.




SCOTUS Gun Watch – Week of 12/12/22

The petition in Baldea, a pro se challenge to New York’s denial of a concealed-carry license application under the pre-Bruen “proper cause” standard, was denied on December 5. 

Not surprisingly, given that we are still less than 5 months out from the Bruen decision, most of the action continues to occur at the lower levels of the federal court system.  One case that was granted, vacated and remanded shortly after Bruen—Bianchi v. Frosh, a challenge to Maryland’s “assault weapons” ban—was argued before a Fourth Circuit panel on December 6. 

Outside of the Second Amendment but relevant to firearms more generally, the Court granted certiorari on Friday, December 9 in Lora v. United States, a criminal sentencing challenge implicating 18 U.S.C. § 924(c), which criminalizes the use of a firearm in connection with a drug trafficking crime or crime of violence.  The issue in Lora is whether the district court was required to impose consecutive, rather than concurrent, sentences when the defendant was convicted of violating 924(c) and of an underlying drug-conspiracy charge. 

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Baldea

v.

City of New York License Division of the NYPD

(21-1495)

NY App. Ct.

10-May-2022

Challenge to NYC gun license denial

Cert Denied

Greco 

v. 

Platkin

(22-478)

3d Cir. 

13-May-2022

Challenge to NJ extreme-risk-protection law under Fourth Amendment/Younger abstention 

Docketed 21-Nov-2022; Response due 21-Dec-2022

 

Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Flick v. Rosen

(20-902)

11th Cir.

29-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Fleury v. Massachusetts

(20-1122)

App. Ct. Mass.

2-Nov-20

Challenge to Mass. firearm storage law

Cert Denied

Holloway v. Barr

(20-782)

3d Cir.

3-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Mai v. United States

(20-819)

9th Cir.

9-Dec-20

As-applied challenge to 922(g)(4)

Cert Denied

Folajtar v. Barr

(20-812)

3d Cir.

11-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Greer v. United States

(19-8709)

11th Cir.

8-Jun-2020

Scope of appellate review for Rehaif errors

Decided 14-June-2021

Caniglia v. Strom

(20-157)

1st Cir.

10-Aug-20

Fourth Amendment challenge to gun removal

Decided 17-May-2021

Hobbs v. United States

(20-171)

6th Cir.

13-Aug-20

Guilty plea under 922(g) without knowledge of disqualifying status

 

Cert Denied

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)

Decided 14-June-2021

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

McGinnis v. United States

(20-6046)

5th Cir.

13-Oct-20

As-applied challenge to 922(g)(8)

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

Knowles v. Hart

(20-840)

11th Cir.

17-Dec-20

Fourth Amendment challenge to use of deadly force against person with holstered weapon

Cert Denied

Libertarian Party of Erie County v. Cuomo

(20-1151)

2d Cir.

9-Feb-21

Challenge to New York’s pistol permit regime

Cert Denied

Keahey v. Marquis

(20-1298)

6th Cir.

16-Mar-21

Failure to give self-defense instruction

Cert Denied

Russell v. New Jersey

(20-1419)

N.J. Superior Ct.

2-Apr-21

Challenge to New Jersey’s good cause public carry law

Cert Denied

Reyes-Torres, v. United States

(20-7714)

5th Cir.

5- Apr-2021

Challenge to § 922(g)(5) (federal law barring undocumented immigrants from possessing firearms)

Cert Denied

Weber v. Ohio

(20-1640)

Ohio Sup. Ct.

21-May-21

Challenge to Ohio law barring carrying/using firearms while intoxicated

Cert Denied

Roundtree v. Wisconsin

(20-1706)

Wisc. Sup. Ct.

4-June-2021

Challenge to state law prohibiting firearm possession by non-violent felon

Cert Denied

Harley v. Garland

(21-104)

4th Cir.

22-July-2021

As-applied challenge to § 922(g)(9) (conviction for misdemeanor domestic violence offense)

Cert Denied

Bello v. Rockland County

(21-514)

2d Cir.

4-Oct-2021

Fourth Amendment and due process challenges to New York policies about the return of firearms after disqualification

Cert Denied

P.Z. v. New Jersey

(21-175)

N.J. Superior Ct.

4-Aug-2021

Challenge to N.J. law permitting firearms seizure/prohibiting possession pursuant to DV restraining order

Cert Denied

Hatch v. Minnesota

(21-667)

Minn. Sup. Ct.

1-Nov-2021

Challenge to Minnesota’s requirement that a person get a permit to carry in public

Cert Denied

Zaitzeff v. Seattle

(21-910)

Wash. Ct. App.

16-Dec-2021

Challenge to Seattle ordinance barring the public carry of certain knives

Cert Denied

Marshall v. BATFE

(21-1155)

4th Cir.

17-Feb-2022

Challenge to 4th Circuit decision vacating opinion striking down under-21 handgun purchase ban

Cert Denied

Rodrigues v. County of Hawaii

(21-895)

9th Cir.

13-Dec-2021

Challenge to arrest on weapons’ charges given the Law Enforcement Officers Safety Act (LEOSA)

Cert Denied

Cassidy v. Massachusetts

(21-1249)

Mass. App. Ct.

1-Mar-2022

Challenge to permit requirement for home firearm possession

Cert Denied

Turner v. Brannon-Dortch

(21-1341)

7th Cir.

4-Apr-2022

Challenge to trial questioning about “illegal” gun that was lawfully licensed

Cert Denied

McCloskey, Petitioner

v.

Missouri Office of Chief Disciplinary Counsel

(21-1440)

Mo. Sup. Ct.

9-May-2022

Challenge to attorney discipline for firearms-related conduct on Second Amendment and due process grounds

Cert Denied

New York State Rifle & Pistol Association v. Bruen

(20-843)

2d Cir.

17-Dec-20

Challenge to New York’s good cause public carry regime

Decided 23-June-2022

Association of New Jersey Rifle & Pistol Clubs v. Bruck

(20-1507)

3d Cir.

26-Apr-21

Challenge to New Jersey ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022

Young v. Hawaii

(20-1639)

9th Cir.

11-May-21

Challenge to Hawaii’s restrictive open carry law

Granted, vacated and remanded 30-June 2022

Bianchi v. Frosh

(21-902)

4th Cir.

16-Dec-2021

Challenge to Maryland’s assault weapons ban and to the methodology used for 2A questions

Granted, vacated and remanded 30-June 2022

Duncan v. Bonta

(21-1194)

9th Cir.

28-Feb-2022

Challenge to California ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

Cert Denied

Morin v. Lyver

(21-1160)

1st Cir.

13-Dec-2022

Challenge to Massachusetts’ bar on handgun purchases for those with nonviolent misdemeanors

Granted, vacated and remanded 03-Oct-2022

Gun Owners of America v. Garland

(21-1215)

6th Cir.

3-Mar-2022

Challenge to the bump stock ban

Cert Denied

Whitaker

v.

District of Columbia Concealed Pistol Licensing Review Board

(21-1545)

D.C. Ct. App.

7-Jun-2022

Challenge to DC gun license revocation standard

Cert Denied

Torcivia

v.

Suffolk County

(21-1522)

2d Cir.

31-May-2022

Challenge to warrantless home entry to seize firearms

Cert Denied

McCutchen, et al.; The Modern Sportsman, et al.

v.

United States

(22-25)

Fed Cir.

8-July-2022

Challenge to ATF bump stock ban under 5th Amendment takings clause

Cert Denied

Keith L. Carnes

v.

United States

(22-76)

8th Cir.

26-July-2022

As-applied challenge to 922(g)(3) and definition of “unlawful user of . . . any controlled substance”

Cert Denied

Mashour Howling

v. 

State of Maryland

Md. Ct. App.

13-Oct-2022

Challenge to Maryland jury instructions for possessing firearm after conviction for a crime of violence

Cert Denied




Bruen, Public Opinion, and Survey Design

The most recent responses to Marquette Law School’s Supreme Court poll, which ran from November 15-22, indicated that 64% of respondents favored or somewhat favored a Supreme Court decision holding “that the 2nd Amendment right to ‘keep and bear arms’ protects the right to carry a gun outside the home.”  19% of respondents somewhat opposed such a ruling, and 17% strongly opposed it.  The question was phrased as a summary of the holding in Bruen: “In 2022 the Supreme Court ruled that the 2nd Amendment right to ‘keep and bear arms’ protects the right to carry a gun outside the home. How much do you favor or oppose this decision?”  Perhaps predictably, given how the question was drafted, some outlets have reported on the poll as indicating “the popularity of the Bruen decision,” that “64 percent favor the ruling in New York State Rifle and Pistol Association v. Bruen,” and that “most Americans are happy with expanded gun-rights protections” generally.  But there are serious reasons to doubt that the Marquette poll actually supports these broad conclusions.

The poll results shed light on a narrow question: how many Americans favor a ruling by the Supreme Court that extends the Second Amendment right to cover carrying guns in public.  While it’s certainly true that this was part of the holding in Bruen, it was a relatively uncontroversial part: both parties in the case accepted that “the Second Amendment protects an individual right to carry firearms outside the home for self-defense.”  In other words, the issue of whether the Second Amendment protects the right to carry a gun outside the home in some circumstances, which is what the Marquette poll asked respondents whether they favored or opposed, wasn’t actually litigated in Bruen—it was a foregone conclusion that the Court would hold that the right protected public carry in some form, as most Courts of Appeal had already held. 

The actual contested question in Bruen was somewhat different.  The petitioners framed the issue as “[w]hether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment”; New York said that the issue was “[w]hether the Second Amendment prohibits New York from requiring residents who wish to carry a concealed firearm in public to have an actual and articulable need to do so.”  In each instance, the focus is on the standard a state may use to grant or deny concealed carry applications—there is no dispute that the state must allow public carry, in some form, pursuant to the Second Amendment.

It is possible to believe that the Second Amendment protects the right to carry a gun outside of the home and that states are allowed to require “proper cause,” or a similar strong showing of need.  One might believe that such a right exists, but that either the legislative objective sought by a “proper cause” licensing framework is sufficiently important to satisfy intermediate scrutiny, or that “proper cause” licensing is consistent with historical tradition (New York made both of those arguments in Bruen itself).  It is entirely possible that a large percentage of those who favored or somewhat favored Marquette’s narrow characterization of the holding do not similarly favor the Court’s decision to invalidate New York’s licensing law and/or the text, history and tradition approach the Court adopted for Second Amendment challenges.  To the former issue, a June 2022 Monmouth University poll found that 56% of respondents agreed with the statement “that individual states should be allowed to limit who can carry a concealed handgun by requiring permit applicants to demonstrate that they need the weapon for their work or for protection.”  When compared to the recent Marquette results, that finding suggests that at least 20% of Americans may support extending the Second Amendment right outside of the home but also agree that states can limit concealed carry to those who affirmatively demonstrate a need.[1]

Of course, this just underscores how difficult it is for public opinion polls to capture the nuance of judicial decisions, a problem not unique to the Second Amendment context.  For example, a Harvard/Harris poll conducted from June 28-29, 2022, asked respondents whether they “support or oppose the Supreme Court’s decision to overturn Roe vs Wade, which allows each state to decide its own standards for abortion instead of a set right?”  The poll found that 55% of respondents opposed the decision, when explained, while 45% favored it.  By contrast, Marquette’s November poll asked: “In 2022 the Supreme Court overturned Roe versus Wade, thus striking down the 1973 decision that made abortion legal in all 50 states. How much do you favor or oppose this decision?”  33% responded that they favored or somewhat favored the Dobbs decision (when characterized in that manner), while 67% said they opposed the decision.  That is a 12% swing from the earlier Harvard poll.

Two major problems of survey design and administration often arise in these situations: conceptual misalignment and framing effects.  Social scientists have long observed and studied the fact that “many reporting problems arise [in surveys] because respondents misunderstand the question.”  As Anna Suessbrick, Michael F. Schober, and Frederick G. Conrad have examined, “even straightforward question concepts are prone to variable interpretation”—for example, Suessbrick et al. describe a 1981 study finding that, of those asked the question “How many hours of television do you watch each weekday,” 16% construed the word “you” to include people other than themselves (such as family members who might independently watch TV), and 61% counted days other than the 5 weekdays.  This phenomenon is almost certainly at work in the Marquette survey responses.  Some of the respondents had likely read about Bruen and understood that the decision did more than simply extend the Second Amendment right outside of the home.  Those individuals may have comprehended the survey question as asking either about only that narrow aspect of the holding, or may have assumed the question drafters intended to ask about the holding in its entirety (with which they were already familiar).  Others who heard that the Supreme Court issued some decision on firearms, but had not read much about the details, likely assumed that Marquette’s framing fully and accurately represented the entire holding.  The larger point is that the question, as written, introduced substantial conceptual misalignment and, likely, produced less reliable answers.

A framing effect “occurs when a communication changes a person’s attitude toward an object (e.g., policy) by increasing the weight given to a subset of relevant considerations.”  As Dennis Chong and James Druckman have described, a classic example of the framing effect is that, “when asked whether they would favor or oppose allowing a hate group to hold a political rally, 85% of respondents answered in favor if the question was prefaced with the suggestion, ‘Given the importance of free speech,’ whereas only 45% were in favor when the question was prefaced with the phrase, ‘Given the risk of violence.’”  In the context of Bruen, the framing issue that is most salient is whether the decision is “framed” as expanding individual rights (a positive framing) or limiting state discretion (a negative framing).  Imagine, for example, a corollary to the Marquette question that asked respondents whether they favored or opposed a decision that “that the 2nd Amendment right to ‘keep and bear arms’ restricts the government’s ability to regulate public carry.” While this is the same general question that was asked, the negative framing would, most likely, produce a different result.

To be clear, this isn’t to say that public support for Bruen is (or is not) at the 64% threshold suggested by the Marquette poll.  Popular support for the decision, or certain aspects of the decision, may in fact be that high—but Marquette’s question does not shed any real light on the popularity of Bruen as a whole.  Given the decision’s breadth, measuring public perception accurately in this context likely requires a series of separate questions and, potentially, clarification to survey respondents who struggle with the prompts.  One question might ask about a Second Amendment right to carry a gun outside of the home, a second might ask about the government’s ability to require a showing of need to obtain a concealed-carry permit, and a third might ask about Bruen’s methodological holding that “modern firearms regulations [must be] consistent with the Second Amendment’s text and historical understanding.”

[1] Per Marquette, 64% favor extending the right outside of the home and 36% oppose that step. Even if one assumes that all those who oppose a right to public carry (full stop) also support state laws requiring a showing of need, that would mean that 20% of favorable responses to the Marquette poll would need to also support laws like New York’s “proper cause” requirement, in order to align with the Monmouth findings.




SCOTUS Gun Watch – Week of 11/28/22

There are a few updates on the Supreme Court front this week.  Baldea, a pro se challenge to New York’s denial of a concealed-carry license application under the pre-Bruen “proper cause” standard, is set to be considered at the Court’s December 2nd conference. 

We’ve also added another case to the tracker:  Greco v. Platkin, a Fourth Amendment challenge to New Jersey’s extreme-risk-protection, or “red flag,” law.  The primary issue in Greco is whether the Third Circuit properly applied the Younger abstention doctrine when it affirmed the district court’s dismissal of the case due to ongoing civil-enforcement proceedings in New Jersey state court. 

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Baldea

v.

City of New York License Division of the NYPD

(21-1495)

NY App. Ct.

10-May-2022

Challenge to NYC gun license denial

Response filed 31-Oct-2022; Reply filed 14-Nov-2022

Distributed for conference 2-Dec-2022 

Greco 

v. 

Platkin

(22-478)

3d Cir. 

13-May-2022

Challenge to NJ extreme-risk-protection law under Fourth Amendment/Younger abstention 

Docketed 21-Nov-2022; Response due 21-Dec-2022

 

Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Flick v. Rosen

(20-902)

11th Cir.

29-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Fleury v. Massachusetts

(20-1122)

App. Ct. Mass.

2-Nov-20

Challenge to Mass. firearm storage law

Cert Denied

Holloway v. Barr

(20-782)

3d Cir.

3-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Mai v. United States

(20-819)

9th Cir.

9-Dec-20

As-applied challenge to 922(g)(4)

Cert Denied

Folajtar v. Barr

(20-812)

3d Cir.

11-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Greer v. United States

(19-8709)

11th Cir.

8-Jun-2020

Scope of appellate review for Rehaif errors

Decided 14-June-2021

Caniglia v. Strom

(20-157)

1st Cir.

10-Aug-20

Fourth Amendment challenge to gun removal

Decided 17-May-2021

Hobbs v. United States

(20-171)

6th Cir.

13-Aug-20

Guilty plea under 922(g) without knowledge of disqualifying status

 

Cert Denied

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)

Decided 14-June-2021

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

McGinnis v. United States

(20-6046)

5th Cir.

13-Oct-20

As-applied challenge to 922(g)(8)

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

Knowles v. Hart

(20-840)

11th Cir.

17-Dec-20

Fourth Amendment challenge to use of deadly force against person with holstered weapon

Cert Denied

Libertarian Party of Erie County v. Cuomo

(20-1151)

2d Cir.

9-Feb-21

Challenge to New York’s pistol permit regime

Cert Denied

Keahey v. Marquis

(20-1298)

6th Cir.

16-Mar-21

Failure to give self-defense instruction

Cert Denied

Russell v. New Jersey

(20-1419)

N.J. Superior Ct.

2-Apr-21

Challenge to New Jersey’s good cause public carry law

Cert Denied

Reyes-Torres, v. United States

(20-7714)

5th Cir.

5- Apr-2021

Challenge to § 922(g)(5) (federal law barring undocumented immigrants from possessing firearms)

Cert Denied

Weber v. Ohio

(20-1640)

Ohio Sup. Ct.

21-May-21

Challenge to Ohio law barring carrying/using firearms while intoxicated

Cert Denied

Roundtree v. Wisconsin

(20-1706)

Wisc. Sup. Ct.

4-June-2021

Challenge to state law prohibiting firearm possession by non-violent felon

Cert Denied

Harley v. Garland

(21-104)

4th Cir.

22-July-2021

As-applied challenge to § 922(g)(9) (conviction for misdemeanor domestic violence offense)

Cert Denied

Bello v. Rockland County

(21-514)

2d Cir.

4-Oct-2021

Fourth Amendment and due process challenges to New York policies about the return of firearms after disqualification

Cert Denied

P.Z. v. New Jersey

(21-175)

N.J. Superior Ct.

4-Aug-2021

Challenge to N.J. law permitting firearms seizure/prohibiting possession pursuant to DV restraining order

Cert Denied

Hatch v. Minnesota

(21-667)

Minn. Sup. Ct.

1-Nov-2021

Challenge to Minnesota’s requirement that a person get a permit to carry in public

Cert Denied

Zaitzeff v. Seattle

(21-910)

Wash. Ct. App.

16-Dec-2021

Challenge to Seattle ordinance barring the public carry of certain knives

Cert Denied

Marshall v. BATFE

(21-1155)

4th Cir.

17-Feb-2022

Challenge to 4th Circuit decision vacating opinion striking down under-21 handgun purchase ban

Cert Denied

Rodrigues v. County of Hawaii

(21-895)

9th Cir.

13-Dec-2021

Challenge to arrest on weapons’ charges given the Law Enforcement Officers Safety Act (LEOSA)

Cert Denied

Cassidy v. Massachusetts

(21-1249)

Mass. App. Ct.

1-Mar-2022

Challenge to permit requirement for home firearm possession

Cert Denied

Turner v. Brannon-Dortch

(21-1341)

7th Cir.

4-Apr-2022

Challenge to trial questioning about “illegal” gun that was lawfully licensed

Cert Denied

McCloskey, Petitioner

v.

Missouri Office of Chief Disciplinary Counsel

(21-1440)

Mo. Sup. Ct.

9-May-2022

Challenge to attorney discipline for firearms-related conduct on Second Amendment and due process grounds

Cert Denied

New York State Rifle & Pistol Association v. Bruen

(20-843)

2d Cir.

17-Dec-20

Challenge to New York’s good cause public carry regime

Decided 23-June-2022

Association of New Jersey Rifle & Pistol Clubs v. Bruck

(20-1507)

3d Cir.

26-Apr-21

Challenge to New Jersey ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022

Young v. Hawaii

(20-1639)

9th Cir.

11-May-21

Challenge to Hawaii’s restrictive open carry law

Granted, vacated and remanded 30-June 2022

Bianchi v. Frosh

(21-902)

4th Cir.

16-Dec-2021

Challenge to Maryland’s assault weapons ban and to the methodology used for 2A questions

Granted, vacated and remanded 30-June 2022

Duncan v. Bonta

(21-1194)

9th Cir.

28-Feb-2022

Challenge to California ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

Cert Denied

Morin v. Lyver

(21-1160)

1st Cir.

13-Dec-2022

Challenge to Massachusetts’ bar on handgun purchases for those with nonviolent misdemeanors

Granted, vacated and remanded 03-Oct-2022

Gun Owners of America v. Garland

(21-1215)

6th Cir.

3-Mar-2022

Challenge to the bump stock ban

Cert Denied

Whitaker

v.

District of Columbia Concealed Pistol Licensing Review Board

(21-1545)

D.C. Ct. App.

7-Jun-2022

Challenge to DC gun license revocation standard

Cert Denied

Torcivia

v.

Suffolk County

(21-1522)

2d Cir.

31-May-2022

Challenge to warrantless home entry to seize firearms

Cert Denied

McCutchen, et al.; The Modern Sportsman, et al.

v.

United States

(22-25)

Fed Cir.

8-July-2022

Challenge to ATF bump stock ban under 5th Amendment takings clause

Cert Denied

Keith L. Carnes

v.

United States

(22-76)

8th Cir.

26-July-2022

As-applied challenge to 922(g)(3) and definition of “unlawful user of . . . any controlled substance”

Cert Denied

Mashour Howling

v. 

State of Maryland

Md. Ct. App.

13-Oct-2022

Challenge to Maryland jury instructions for possessing firearm after conviction for a crime of violence

Cert Denied




SCOTUS Gun Watch – Week of 11/14/22

While most of the action on Second Amendment challenges continues to occur in the federal district and appellate courts, there were a few developments recently with the Supreme Court petitions we are tracking. 

The Court denied certiorari in Carnes, a challenge implicating the federal ban on gun possession by an unlawful drug user, on October 31.  The Court also considered TorciviaMcCutchen, and Howling at its November 10 conference, and denied certiorari in all three cases on November 14.  That leaves only Baldea as an active case on the tracker.  Baldea is a pro se challenge to New York’s denial of a concealed-carry license application under the pre-Bruen “proper cause” standard, which petitioner contends implicates the federal Law Enforcement Officers Safety Act.

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Baldea

v.

City of New York License Division of the NYPD

(21-1495)

NY App. Ct.

10-May-2022

Challenge to NYC gun license denial

Response filed 31-Oct-2022

Torcivia

v.

Suffolk County

(21-1522)

2d Cir.

31-May-2022

Challenge to warrantless home entry to seize firearms

Cert Denied

McCutchen, et al.; The Modern Sportsman, et al.

v.

United States

(22-25)

Fed Cir.

8-July-2022

Challenge to ATF bump stock ban under 5th Amendment takings clause

Cert Denied

Keith L. Carnes

v.

United States

(22-76)

8th Cir.

26-July-2022

As-applied challenge to 922(g)(3) and definition of “unlawful user of . . . any controlled substance”

Cert Denied

Mashour Howling

v. 

State of Maryland

Md. Ct. App.

13-Oct-2022

Challenge to Maryland jury instructions for possessing firearm after conviction for a crime of violence

Cert Denied

 

Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Flick v. Rosen

(20-902)

11th Cir.

29-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Fleury v. Massachusetts

(20-1122)

App. Ct. Mass.

2-Nov-20

Challenge to Mass. firearm storage law

Cert Denied

Holloway v. Barr

(20-782)

3d Cir.

3-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Mai v. United States

(20-819)

9th Cir.

9-Dec-20

As-applied challenge to 922(g)(4)

Cert Denied

Folajtar v. Barr

(20-812)

3d Cir.

11-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Greer v. United States

(19-8709)

11th Cir.

8-Jun-2020

Scope of appellate review for Rehaif errors

Decided 14-June-2021

Caniglia v. Strom

(20-157)

1st Cir.

10-Aug-20

Fourth Amendment challenge to gun removal

Decided 17-May-2021

Hobbs v. United States

(20-171)

6th Cir.

13-Aug-20

Guilty plea under 922(g) without knowledge of disqualifying status

 

Cert Denied

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)

Decided 14-June-2021

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

McGinnis v. United States

(20-6046)

5th Cir.

13-Oct-20

As-applied challenge to 922(g)(8)

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

Knowles v. Hart

(20-840)

11th Cir.

17-Dec-20

Fourth Amendment challenge to use of deadly force against person with holstered weapon

Cert Denied

Libertarian Party of Erie County v. Cuomo

(20-1151)

2d Cir.

9-Feb-21

Challenge to New York’s pistol permit regime

Cert Denied

Keahey v. Marquis

(20-1298)

6th Cir.

16-Mar-21

Failure to give self-defense instruction

Cert Denied

Russell v. New Jersey

(20-1419)

N.J. Superior Ct.

2-Apr-21

Challenge to New Jersey’s good cause public carry law

Cert Denied

Reyes-Torres, v. United States

(20-7714)

5th Cir.

5- Apr-2021

Challenge to § 922(g)(5) (federal law barring undocumented immigrants from possessing firearms)

Cert Denied

Weber v. Ohio

(20-1640)

Ohio Sup. Ct.

21-May-21

Challenge to Ohio law barring carrying/using firearms while intoxicated

Cert Denied

Roundtree v. Wisconsin

(20-1706)

Wisc. Sup. Ct.

4-June-2021

Challenge to state law prohibiting firearm possession by non-violent felon

Cert Denied

Harley v. Garland

(21-104)

4th Cir.

22-July-2021

As-applied challenge to § 922(g)(9) (conviction for misdemeanor domestic violence offense)

Cert Denied

Bello v. Rockland County

(21-514)

2d Cir.

4-Oct-2021

Fourth Amendment and due process challenges to New York policies about the return of firearms after disqualification

Cert Denied

P.Z. v. New Jersey

(21-175)

N.J. Superior Ct.

4-Aug-2021

Challenge to N.J. law permitting firearms seizure/prohibiting possession pursuant to DV restraining order

Cert Denied

Hatch v. Minnesota

(21-667)

Minn. Sup. Ct.

1-Nov-2021

Challenge to Minnesota’s requirement that a person get a permit to carry in public

Cert Denied

Zaitzeff v. Seattle

(21-910)

Wash. Ct. App.

16-Dec-2021

Challenge to Seattle ordinance barring the public carry of certain knives

Cert Denied

Marshall v. BATFE

(21-1155)

4th Cir.

17-Feb-2022

Challenge to 4th Circuit decision vacating opinion striking down under-21 handgun purchase ban

Cert Denied

Rodrigues v. County of Hawaii

(21-895)

9th Cir.

13-Dec-2021

Challenge to arrest on weapons’ charges given the Law Enforcement Officers Safety Act (LEOSA)

Cert Denied

Cassidy v. Massachusetts

(21-1249)

Mass. App. Ct.

1-Mar-2022

Challenge to permit requirement for home firearm possession

Cert Denied

Turner v. Brannon-Dortch

(21-1341)

7th Cir.

4-Apr-2022

Challenge to trial questioning about “illegal” gun that was lawfully licensed

Cert Denied

McCloskey, Petitioner

v.

Missouri Office of Chief Disciplinary Counsel

(21-1440)

Mo. Sup. Ct.

9-May-2022

Challenge to attorney discipline for firearms-related conduct on Second Amendment and due process grounds

Cert Denied

New York State Rifle & Pistol Association v. Bruen

(20-843)

2d Cir.

17-Dec-20

Challenge to New York’s good cause public carry regime

Decided 23-June-2022

Association of New Jersey Rifle & Pistol Clubs v. Bruck

(20-1507)

3d Cir.

26-Apr-21

Challenge to New Jersey ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022

Young v. Hawaii

(20-1639)

9th Cir.

11-May-21

Challenge to Hawaii’s restrictive open carry law

Granted, vacated and remanded 30-June 2022

Bianchi v. Frosh

(21-902)

4th Cir.

16-Dec-2021

Challenge to Maryland’s assault weapons ban and to the methodology used for 2A questions

Granted, vacated and remanded 30-June 2022

Duncan v. Bonta

(21-1194)

9th Cir.

28-Feb-2022

Challenge to California ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

Cert Denied

Morin v. Lyver

(21-1160)

1st Cir.

13-Dec-2022

Challenge to Massachusetts’ bar on handgun purchases for those with nonviolent misdemeanors

Granted, vacated and remanded 03-Oct-2022

Gun Owners of America v. Garland

(21-1215)

6th Cir.

3-Mar-2022

Challenge to the bump stock ban

Cert Denied

Whitaker

v.

District of Columbia Concealed Pistol Licensing Review Board

(21-1545)

D.C. Ct. App.

7-Jun-2022

Challenge to DC gun license revocation standard

Cert Denied




The Center’s September 2022 Symposium with the NYU Law Review

On September 23, 2022, the Center co-hosted a symposium in New York, in coordination with the New York University Law Review, on the theme of Gun Rights and Regulation after Bruen 

The symposium was a tremendous success and the Center would like to thank all those who participated, attended in person, and tuned into the live stream.  The keynote discussion regarding the racial justice implications of gun law enforcement post-Bruen featured Manhattan District Attorney Alvin Bragg, New York State Senator Zellnor Myrie, Steven Wu, Chief of Appeals for the Manhattan DA’s Office, and Aimee Carlisle of the Bronx Public Defenders.  The discussion, moderated by Professor Vincent Southerland of NYU, was witnessed by a standing-room-only audience on Friday morning to kick off the symposium.  The scholarly panels similarly produced high-quality conversation and debate about the Bruen decision and how courts will implement its new historical test.  The essays produced as part of the symposium will be published in an upcoming volume of the New York University Law Review.

Audio recordings of the symposium panels are available on YouTube at the links below, and a few pictures from the event are also included here.  Thank you to our partners at the NYU Law Review and to everyone who helped make the event a success!

Panel 1 –  Keynote Discussion:  Criminal Justice and Prosecutorial Discretion in the Wake of Bruen – Vincent Southerland (NYU); Alvin Bragg (Manhattan District Attorney); Aimee Carlisle (The Bronx Defenders); Zellnor Myrie (New York State Senator); Steven Wu (Chief of Appeals, Manhattan DA’s Office)

Panel 2 – Bruen’s Methodology and Practical Consequences for Legislation and Criminal Law – Mark Tushnet (Harvard); Eugene Volokh (UCLA); Eric Ruben (SMU)

Panel 3 – Sensitive Places and the Challenges of Applying Bruen in the Lower Courts – Jamal Greene (Columbia); Joseph Blocher (Duke);  Darrell Miller (Duke); Jake Charles (Pepperdine); Adam Samaha (NYU)

Panel 4 – After Bruen: Implications for Law Enforcement, Stare Decisis, and Supreme Court Legitimacy – Sanford Levinson (Texas); Brandon del Pozo (Rhode Island Hospital); Mary Anne Franks (Miami); Barry Friedman (NYU); Haley Proctor (Missouri)

 

Center Co-Director Joseph Blocher provides opening remarks and welcomes symposium attendees.

A packed audience watches the first panel discussion, featuring Manhattan District Attorney Alvin Bragg, New York State Senator Zellnor Myrie, Steven Wu, Chief of Appeals for the Manhattan DA’s Office, and Aimee Carlisle, Senior Attorney at The Bronx Defenders, and moderated by Vincent Southerland of NYU. 

Center Co-Directors Joseph Blocher and Darrell Miller, along with former Executive Director Jake Charles (now at Pepperdine) and NYU’s Adam Samaha, participate in a panel discussion of sensitive places post-Bruen moderated by Jamal Greene of Columbia.

Panel 4, featuring Brandon del Pozo (Rhode Island Hospital), Barry Friedman (NYU), Mary Anne Franks (Miami), and Haley Proctor (Missouri), moderated by Sanford Levinson (Texas).




SCOTUS Gun Watch – Week of 10/24/22

We put the SCOTUS updates on pause briefly, in part because the Court did not take another Second Amendment or firearms-centric case this term. 

Over the past few weeks, responses were filed in several cases we are tracking including Torcivia, McCutchen, and Carnes.  There’s also one new case on the tracker this week:  Howling v. MarylandIn Howling, the petitioner was convicted of a state-level offense of possessing a gun after a disqualifying conviction for a crime of violence (simple assault) 17 years prior.  Howling challenges, in part, the fact that Maryland’s pattern jury instructions for the gun possession offense lack any mens rea requirement.  While there is no direct Second Amendment challenge, the petition for certiorari contends that “Petitioner Howling’s case, at least as a matter of public interest and public policy, has increased ‘Certworthiness’ in light of this Court’s recent Bruen decision,” and suggests that Bruen indicates the Court should view with suspicion state laws that criminalize gun possession without requiring a determination of mens rea of prohibited status. 

Much of the post-Bruen action thus far has been at the district-court level, but we will continue to track developments with the pending petitions and any new firearms-related petitions filed with the Court.

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Baldea

v.

City of New York License Division of the NYPD

(21-1495)

NY App. Ct.

10-May-2022

Challenge to NYC gun license denial

Response requested (due 31-Oct-2022)

Torcivia

v.

Suffolk County

(21-1522)

2d Cir.

31-May-2022

Challenge to warrantless home entry to seize firearms

Response filed 10-Oct-2022; Reply filed 21-Oct-2022

McCutchen, et al.; The Modern Sportsman, et al.

v.

United States

(22-25)

Fed Cir.

8-July-2022

Challenge to ATF bump stock ban under 5th Amendment takings clause

Response filed 7-Oct-2022; Reply filed 19-Oct-2022

Keith L. Carnes

v.

United States

(22-76)

8th Cir.

26-July-2022

As-applied challenge to 922(g)(3) and definition of “unlawful user of . . . any controlled substance”

Response filed 26-Sept-2022; Reply filed 11-Oct-2022; Distributed for conference 28-Oct-2022

Mashour Howling

v. 

State of Maryland

Md. Ct. App.

13-Oct-2022

Challenge to Maryland jury instructions for possessing firearm after conviction for a crime of violence

Response due 17-Nov-2022

 

Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Flick v. Rosen

(20-902)

11th Cir.

29-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Fleury v. Massachusetts

(20-1122)

App. Ct. Mass.

2-Nov-20

Challenge to Mass. firearm storage law

Cert Denied

Holloway v. Barr

(20-782)

3d Cir.

3-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Mai v. United States

(20-819)

9th Cir.

9-Dec-20

As-applied challenge to 922(g)(4)

Cert Denied

Folajtar v. Barr

(20-812)

3d Cir.

11-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Greer v. United States

(19-8709)

11th Cir.

8-Jun-2020

Scope of appellate review for Rehaif errors

Decided 14-June-2021

Caniglia v. Strom

(20-157)

1st Cir.

10-Aug-20

Fourth Amendment challenge to gun removal

Decided 17-May-2021

Hobbs v. United States

(20-171)

6th Cir.

13-Aug-20

Guilty plea under 922(g) without knowledge of disqualifying status

 

Cert Denied

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)

Decided 14-June-2021

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

McGinnis v. United States

(20-6046)

5th Cir.

13-Oct-20

As-applied challenge to 922(g)(8)

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

Knowles v. Hart

(20-840)

11th Cir.

17-Dec-20

Fourth Amendment challenge to use of deadly force against person with holstered weapon

Cert Denied

Libertarian Party of Erie County v. Cuomo

(20-1151)

2d Cir.

9-Feb-21

Challenge to New York’s pistol permit regime

Cert Denied

Keahey v. Marquis

(20-1298)

6th Cir.

16-Mar-21

Failure to give self-defense instruction

Cert Denied

Russell v. New Jersey

(20-1419)

N.J. Superior Ct.

2-Apr-21

Challenge to New Jersey’s good cause public carry law

Cert Denied

Reyes-Torres, v. United States

(20-7714)

5th Cir.

5- Apr-2021

Challenge to § 922(g)(5) (federal law barring undocumented immigrants from possessing firearms)

Cert Denied

Weber v. Ohio

(20-1640)

Ohio Sup. Ct.

21-May-21

Challenge to Ohio law barring carrying/using firearms while intoxicated

Cert Denied

Roundtree v. Wisconsin

(20-1706)

Wisc. Sup. Ct.

4-June-2021

Challenge to state law prohibiting firearm possession by non-violent felon

Cert Denied

Harley v. Garland

(21-104)

4th Cir.

22-July-2021

As-applied challenge to § 922(g)(9) (conviction for misdemeanor domestic violence offense)

Cert Denied

Bello v. Rockland County

(21-514)

2d Cir.

4-Oct-2021

Fourth Amendment and due process challenges to New York policies about the return of firearms after disqualification

Cert Denied

P.Z. v. New Jersey

(21-175)

N.J. Superior Ct.

4-Aug-2021

Challenge to N.J. law permitting firearms seizure/prohibiting possession pursuant to DV restraining order

Cert Denied

Hatch v. Minnesota

(21-667)

Minn. Sup. Ct.

1-Nov-2021

Challenge to Minnesota’s requirement that a person get a permit to carry in public

Cert Denied

Zaitzeff v. Seattle

(21-910)

Wash. Ct. App.

16-Dec-2021

Challenge to Seattle ordinance barring the public carry of certain knives

Cert Denied

Marshall v. BATFE

(21-1155)

4th Cir.

17-Feb-2022

Challenge to 4th Circuit decision vacating opinion striking down under-21 handgun purchase ban

Cert Denied

Rodrigues v. County of Hawaii

(21-895)

9th Cir.

13-Dec-2021

Challenge to arrest on weapons’ charges given the Law Enforcement Officers Safety Act (LEOSA)

Cert Denied

Cassidy v. Massachusetts

(21-1249)

Mass. App. Ct.

1-Mar-2022

Challenge to permit requirement for home firearm possession

Cert Denied

Turner v. Brannon-Dortch

(21-1341)

7th Cir.

4-Apr-2022

Challenge to trial questioning about “illegal” gun that was lawfully licensed

Cert Denied

McCloskey, Petitioner

v.

Missouri Office of Chief Disciplinary Counsel

(21-1440)

Mo. Sup. Ct.

9-May-2022

Challenge to attorney discipline for firearms-related conduct on Second Amendment and due process grounds

Cert Denied

New York State Rifle & Pistol Association v. Bruen

(20-843)

2d Cir.

17-Dec-20

Challenge to New York’s good cause public carry regime

Decided 23-June-2022

Association of New Jersey Rifle & Pistol Clubs v. Bruck

(20-1507)

3d Cir.

26-Apr-21

Challenge to New Jersey ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022

Young v. Hawaii

(20-1639)

9th Cir.

11-May-21

Challenge to Hawaii’s restrictive open carry law

Granted, vacated and remanded 30-June 2022

Bianchi v. Frosh

(21-902)

4th Cir.

16-Dec-2021

Challenge to Maryland’s assault weapons ban and to the methodology used for 2A questions

Granted, vacated and remanded 30-June 2022

Duncan v. Bonta

(21-1194)

9th Cir.

28-Feb-2022

Challenge to California ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

Cert Denied

Morin v. Lyver

(21-1160)

1st Cir.

13-Dec-2022

Challenge to Massachusetts’ bar on handgun purchases for those with nonviolent misdemeanors

Granted, vacated and remanded 03-Oct-2022

Gun Owners of America v. Garland

(21-1215)

6th Cir.

3-Mar-2022

Challenge to the bump stock ban

Cert Denied

Whitaker

v.

District of Columbia Concealed Pistol Licensing Review Board

(21-1545)

D.C. Ct. App.

7-Jun-2022

Challenge to DC gun license revocation standard

Cert Denied




Tennessee State Court Strikes Down Public Housing Complex’s Gun Ban

In an 8-page decision issued on October 13, the Tennessee Court of Appeals ruled in Columbia Housing v. Braden that the landlord of a public housing complex cannot prohibit tenants from keeping firearms in their residences because this “prohibition . . . is an unconstitutional lease condition.”  The decision, which is consistent with at least one pre-Bruen state-court decision under the old “two-part” test, provides an interesting window into what Bruen changes and what it does not.

The trial court had ruled in favor of the landlord, relying primarily on a 2009 Tennessee Attorney General legal opinion stating that, “[u]nder the general principles of contract law, a tenant can contractually agree to give up rights as long as the waiver is not unconscionable, or in violation of a statute. A lease provision forbidding the possession of firearms on the leased premises is neither.”  Under this reasoning, the trial court held that the tenant had voluntarily waived his right to possess a firearm by entering into a lease containing a gun prohibition. 

However, the Court of Appeals reversed in a unanimous decision and found that it was unconstitutional for the landlord to include the clause in the lease to begin with.  The appellate panel noted that the unconstitutional conditions doctrine places limits on the ability of a government entity to require an individual to sacrifice a constitutional right for a benefit (here, access to public housing).  Therefore, a landlord of public housing units cannot require prospective tenants to waive Second Amendment rights unless some exception to the constitutional right applies. 

In this case, the landlord argued that it could ban guns under the sensitive places doctrine.  The court, relying on Bruen’s brief analysis of sensitive places, sought to “determine whether handguns have been historically prohibited in public housing.”  Noting that the modern decisional law on handgun prohibitions in public housing is unsettled, the court concluded that there was no longstanding tradition of such bans and “that an individual’s public housing unit is [not] analogous to . . . other established sensitive government buildings” because it is the tenant’s home.  Therefore, the court found the handgun prohibition unconstitutional and unenforceable.

It’s worth noting that the outcome here may not have been any different under the pre-Bruen legal test.  While courts diverged on the question of whether guns could be prohibited entirely in a lease agreement for a public-housing unit, the Delaware Supreme Court applied intermediate scrutiny to a challenge to public-housing lease rules regarding firearms brought under the state’s Second Amendment analogue in 2014.  The Delaware court found that provisions banning guns in common areas and requiring residents to produce a gun permit upon a showing of reasonable cause of a potential lease violation were overbroad and unconstitutional.  While that court did not apply Heller directly because it was dealing with a state constitutional provision, its analysis was similar to how federal courts approached Second Amendment challenges pre-Bruen.  And the holding in the Delaware case was actually broader than the recent Tennessee decision: the landlord in question permitted guns to be kept in individual units, and banned them only in common areas.  The Delaware Supreme Court held that:

[T]he restrictions of the Common Area Provision are overbroad and burden the right to bear arms more than is reasonably necessary. Indeed, the Common Area Provision severely burdens the right by functionally disallowing armed self-defense in areas that Residents, their families, and guests may occupy as part of their living space. Section 20 of the Delaware Constitution precludes the WHA from adopting such a policy.

To be sure, other courts came out differently when evaluating similar challenges.  For example, an Illinois court upheld a public housing gun ban in 2019 under “heightened means-ends scrutiny,” finding that the ban was sufficiently tailored to the objective of “protecting the safety of residents, guests, and others who are present from time to time at housing facilities.”  After Bruen, it’s difficult to imagine a blanket gun prohibition in a public-housing lease being upheld by any court—and that appears to be the type of consistency that the Supreme Court majority was hoping to facilitate by rejecting a “judge-empowering interest-balancing inquiry.”  Given Heller’s directive that “the right of law-abiding, responsible citizens to use arms in defense of hearth and home is elevated above all other interests,” the majority’s concerns about interest-balancing might be well-taken in the public-housing context—after all, blanket lease prohibitions completely prevent individuals from keeping guns in their homes for self-defense, and it’s difficult to view the pre-Bruen decisions upholding such provisions as consistent with a right to armed self-defense that is strongest within the home.

Moreover, the Tennessee Court of Appeals’ application of the sensitive places doctrine here seems correct.  Bruen requires a historical-analogical approach to determine whether a given location may be deemed sensitive.  The court’s conclusion that modern-day public housing units are not analogous to polling places and legislative assemblies where guns were prohibited around the time of the Founding is well-reasoned.  Public housing units are fundamentally distinct in that they are someone’s primary residence—polling places, legislative assemblies, and courthouses are not.

The decision in Braden, however, also highlights deficiencies in how other courts have evaluated sensitive-places laws post-Bruen.  For example, the recent decision striking down large portions of New York’s sensitive-places list relied primarily on small differences between modern-day locations and their potential historical analogues: modern-day stadiums and concert halls are not relevantly similar to “public assemblies” in the 1800s, the judge found, because that term likely required that the attendees were specifically exercising constitutional rights.  The decision in Braden, by contrast, illustrates the type of broad, fundamental difference in kind that properly makes a historical law non-analogous.  The “residential use” distinction is one appropriate way to demarcate historical comparators—a historical firearms prohibition that applied only to non-residential locations cannot support a modern law banning guns in residences, and vice versa. 




Bruen’s Practical Impact: What We Know and Where We are Going

In recent weeks, the Center has devoted a great deal of space to covering the legal implications of the Bruen decision, including how lower courts in New York, Virginia, Texas, and other jurisdictions have started to apply its history-focused framework.  But what about Bruen’s practical implications?  Has the decision impacted the number of people seeking a permit to carry a gun in public?  What data already exist about how Bruen has changed life for gunowners, those who want to acquire a gun, and those impacted by gun violence?

After Bruen was decided, the states with may-issue permitting laws moved quickly to either amend their laws to remove the proper-cause requirement (as in the case of New York), or issue legal opinion letters stating that such requirements were no longer in force and should not be applied by licensing officers (as in New Jersey, California, and other states).  The licensing rules in these states no longer mandate that individuals make a showing of proper or exceptional cause to obtain a concealed carry permit. 

The predictable impact of these legal changes was a rapid rise in permit applications in former may-issue states, as The Reload summarized here back in July.  For example, NYPD statistics released in late September show that the period from June 23-August 31 “account[ed] for nearly 50% of all new handgun permit applications” in New York City in 2022.  In other words, applications in the two months after Bruen equaled the number filed in the first 6-7 months of the year.  San Francisco similarly recorded a “dramatic spike” in concealed carry permit applications post-Bruen, receiving 45 applications in the weeks following Bruen when the city typically sees only 2 applications per year.  Hawaii also observed a notable increase in applications, and New Jersey officials projected over 200,000 concealed carry permit applications in the state after Bruen was issued.  New permit applications in Maryland from June 23 to July 11 increased 900% from the same period in 2021. 

It also stands to reason that these states are issuing more permits under shall-issue laws, although comprehensive data on permit application success rates is not yet available.  Those who apply for a license, even under a shall-issue licensing process, must still make required submissions, undergo training, and pay an application fee (in many states) before receiving a permit.  It’s important to remember that, even before Bruen, there was a distinct rise in the number of concealed-carry permit holders—by one count, the number of permit holders increased by 48% from 2016 to 2020, driven in part by certain states relaxing their permit application requirements pre-Bruen.  And this isn’t indicative of the full increase in the number of individuals who carry concealed weapons in public either, which has certainly jumped even more dramatically as more states move to permitless carry.

Concrete statistics about gun sales post-Bruen aren’t yet available, although the most recent data for 2020 showed a large jump in gun sales overall (a 40% increase from 2019, with purchases continuing to climb in early 2021).  It’s not immediately clear that Bruen will necessarily lead to an increase in gun sales, as opposed to a jump in permit applications.  Some of the largest may-issue states (New York, New Jersey, and Massachusetts) require a permit to purchase a firearm—so the new applications there could be directly tied to gun purchases.  But many other states do not have permit-to-purchase laws, meaning that the spike in applications is likely driven by those who already own guns but were previously unable to carry those guns in public and would now like to do so.  Historically, restrictive changes to the law (like the 1994 Assault Weapons Ban) or even mere speculation that such changes are imminent, have triggered a jump in gun sales.  It may be that legal changes more permissive of gun possession and public carry, by contrast, either depress sales or have no discernible impact.  For example, gun sales declined markedly after the 2016 election of Donald Trump because prospective gun purchasers were no longer as motivated by the fear of stricter gun regulation.

Perhaps the most important empirical question in the aftermath of Bruen will be whether the decision leads to a statistically significant increase in gun violence in former may-issue states.  There’s no indication that such data would be directly relevant within the Supreme Court’s history-focused test or prompt a reevaluation of the decision, but gauging Bruen’s practical impact is still important.  The Court may, in the future, weigh challenges to other licensing rules, and preventing violent crime is (in many instances) a historically-grounded legislative rationale that can be considered in a limited way within the Bruen framework.  There are also, of course, pressing non-legal reasons to determine what impact, if any, Bruen has on gun violence.  For example, such research may lead to greater understanding of the nature and contours of gun violence as a societal problem, whatever the scope of governmental authority to address it through law.    

It could be that changing from may-issue to shall-issue licenses increases salient measures of physical violence.  For example, studies cited in the amicus briefs and Justice Breyer’s dissent in Bruen suggest an association between shall-issue licensing and higher rates of homicide and violent crime (and similar decreases for may-issue licensing), although there is academic debate about these findings and other studies find no impact.  A downstream effect of such an increase, if it exists, would be that more individuals are also exposed to gun violence, even if they are not personally a victim of gun violence.  For example, a recent study found that 30% of surveyed Generation-Z members had experienced gun violence personally and an additional 24% had a friend or family member who had.

The other piece of the puzzle here is whether Bruen leads to an increase in successful defensive firearm uses of the kind identified in Justice Alito’s concurrence.  Data regarding defensive gun uses is notoriously hard to come by, and scholarly estimates vary by a factor of ten or more.  A recent study using data from the National Crime Victimization Survey found that 0.9% of contact crimes involved a defensive gun use.  That percentage suggests there are approximately 100,000 annual defensive gun uses.  According to a different source, the 2021 National Firearms Survey, there are approximately 1.7 million defensive gun uses per year and approximately 1/3 of gun owners have (in their lifetime) used a gun to defend themselves or their property.[1]  The National Firearms Survey relies on answers provided by gunowners to survey questions.  There are numerous obstacles to accurately estimating the number of defensive gun uses, including the lack of a standard definition of a “defensive gun use,” the lack of large, reliable data sets, and the documented disconnect between the number of gunowners who report discharging a gun in self-defense and the number of individuals treated for gunshot wounds in the United States.

Even if data suggest an increase in gun violence on one or more metrics stemming from Bruen’s practical changes to state licensing frameworks, some are likely to point to increases in defensive uses of firearms (if indicated by the data) to argue that the decision’s benefits outweighed its costs.

[1] The survey itself provides more information about how the 1.7 million number, which required ancillary calculations and estimates from the data actually collected, was reached. 




SCOTUS Gun Watch – Week of 10/3/22

The Supreme Court held its “Long Conference” last Wednesday and issued orders in a number of cases on Monday, as it kicked off the new term.  The major takeaway is that, perhaps not surprisingly since few courts have yet to actually apply Bruen‘s new test, the Court did not take another Second Amendment case. 

The Court denied certiorari in a pair of cases challenging the ATF’s bump stock ban, Aposhian and Gun Owners of America.  Those cases challenged the agency’s actions as ultra vires and on Chevron grounds, not under the Second Amendment directly.  This means that the bump-stock ban, which went into effect in 2019, does not appear to be in any immediate judicial jeopardy.  The Court also denied certiorari in Whitaker, a vagueness challenge to D.C.’s standard for revoking gun licenses based on a “propensity for violence or instability.”  Finally, the court remanded Morin – a challenge to a Massachusetts law that prohibits those convicted of certain gun-related state misdemeanor offenses from purchasing handguns – to the First Circuit for further consideration in light of Bruen

 

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

Cert Denied

Morin v. Lyver

(21-1160)

1st Cir.

13-Dec-2022

Challenge to Massachusetts’ bar on handgun purchases for those with nonviolent misdemeanors

Granted, vacated and remanded 03-Oct-2022

Gun Owners of America v. Garland

(21-1215)

6th Cir.

3-Mar-2022

Challenge to the bump stock ban

Cert Denied

Baldea v. City of New York License Division of the NYPD

(21-1495)

NY App. Ct.

10-May-2022

Challenge to NYC gun license denial

Distributed for conference 28-Sept-2022; Response requested (due 31-Oct-2022)

Torcivia

v.

Suffolk County

(21-1522)

2d Cir.

31-May-2022

Challenge to warrantless home entry to seize firearms

Distributed for conference 28-Sept-2022; Response requested (due 11-Oct-2022)

Whitaker

v.

District of Columbia Concealed Pistol Licensing Review Board

(21-1545)

D.C. Ct. App.

7-Jun-2022

Challenge to DC gun license revocation standard

Cert Denied

McCutchen, et al.; The Modern Sportsman, et al.

v.

United States

(22-25)

Fed Cir.

8-July-2022

Challenge to ATF bump stock ban under 5th Amendment takings clause

Filed 5-July-2022; Response due 7-Oct-2022

Keith L. Carnes

v.

United States

(22-76)

8th Cir.

26-July-2022

As-applied challenge to 922(g)(3) and definition of “unlawful user of . . . any controlled substance”

Filed 26-July-2022; Response due 26-Sept-2022

 

Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Flick v. Rosen

(20-902)

11th Cir.

29-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Fleury v. Massachusetts

(20-1122)

App. Ct. Mass.

2-Nov-20

Challenge to Mass. firearm storage law

Cert Denied

Holloway v. Barr

(20-782)

3d Cir.

3-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Mai v. United States

(20-819)

9th Cir.

9-Dec-20

As-applied challenge to 922(g)(4)

Cert Denied

Folajtar v. Barr

(20-812)

3d Cir.

11-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Greer v. United States

(19-8709)

11th Cir.

8-Jun-2020

Scope of appellate review for Rehaif errors

Decided 14-June-2021

Caniglia v. Strom

(20-157)

1st Cir.

10-Aug-20

Fourth Amendment challenge to gun removal

Decided 17-May-2021

Hobbs v. United States

(20-171)

6th Cir.

13-Aug-20

Guilty plea under 922(g) without knowledge of disqualifying status

 

Cert Denied

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)

Decided 14-June-2021

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

McGinnis v. United States

(20-6046)

5th Cir.

13-Oct-20

As-applied challenge to 922(g)(8)

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

Knowles v. Hart

(20-840)

11th Cir.

17-Dec-20

Fourth Amendment challenge to use of deadly force against person with holstered weapon

Cert Denied

Libertarian Party of Erie County v. Cuomo

(20-1151)

2d Cir.

9-Feb-21

Challenge to New York’s pistol permit regime

Cert Denied

Keahey v. Marquis

(20-1298)

6th Cir.

16-Mar-21

Failure to give self-defense instruction

Cert Denied

Russell v. New Jersey

(20-1419)

N.J. Superior Ct.

2-Apr-21

Challenge to New Jersey’s good cause public carry law

Cert Denied

Reyes-Torres, v. United States

(20-7714)

5th Cir.

5- Apr-2021

Challenge to § 922(g)(5) (federal law barring undocumented immigrants from possessing firearms)

Cert Denied

Weber v. Ohio

(20-1640)

Ohio Sup. Ct.

21-May-21

Challenge to Ohio law barring carrying/using firearms while intoxicated

Cert Denied

Roundtree v. Wisconsin

(20-1706)

Wisc. Sup. Ct.

4-June-2021

Challenge to state law prohibiting firearm possession by non-violent felon

Cert Denied

Harley v. Garland

(21-104)

4th Cir.

22-July-2021

As-applied challenge to § 922(g)(9) (conviction for misdemeanor domestic violence offense)

Cert Denied

Bello v. Rockland County

(21-514)

2d Cir.

4-Oct-2021

Fourth Amendment and due process challenges to New York policies about the return of firearms after disqualification

Cert Denied

P.Z. v. New Jersey

(21-175)

N.J. Superior Ct.

4-Aug-2021

Challenge to N.J. law permitting firearms seizure/prohibiting possession pursuant to DV restraining order

Cert Denied

Hatch v. Minnesota

(21-667)

Minn. Sup. Ct.

1-Nov-2021

Challenge to Minnesota’s requirement that a person get a permit to carry in public

Cert Denied

Zaitzeff v. Seattle

(21-910)

Wash. Ct. App.

16-Dec-2021

Challenge to Seattle ordinance barring the public carry of certain knives

Cert Denied

Marshall v. BATFE

(21-1155)

4th Cir.

17-Feb-2022

Challenge to 4th Circuit decision vacating opinion striking down under-21 handgun purchase ban

Cert Denied

Rodrigues v. County of Hawaii

(21-895)

9th Cir.

13-Dec-2021

Challenge to arrest on weapons’ charges given the Law Enforcement Officers Safety Act (LEOSA)

Cert Denied

Cassidy v. Massachusetts

(21-1249)

Mass. App. Ct.

1-Mar-2022

Challenge to permit requirement for home firearm possession

Cert Denied

Turner v. Brannon-Dortch

(21-1341)

7th Cir.

4-Apr-2022

Challenge to trial questioning about “illegal” gun that was lawfully licensed

Cert Denied

McCloskey, Petitioner

v.

Missouri Office of Chief Disciplinary Counsel

(21-1440)

Mo. Sup. Ct.

9-May-2022

Challenge to attorney discipline for firearms-related conduct on Second Amendment and due process grounds

Cert Denied

New York State Rifle & Pistol Association v. Bruen

(20-843)

2d Cir.

17-Dec-20

Challenge to New York’s good cause public carry regime

Decided 23-June-2022

Association of New Jersey Rifle & Pistol Clubs v. Bruck

(20-1507)

3d Cir.

26-Apr-21

Challenge to New Jersey ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022

Young v. Hawaii

(20-1639)

9th Cir.

11-May-21

Challenge to Hawaii’s restrictive open carry law

Granted, vacated and remanded 30-June 2022

Bianchi v. Frosh

(21-902)

4th Cir.

16-Dec-2021

Challenge to Maryland’s assault weapons ban and to the methodology used for 2A questions

Granted, vacated and remanded 30-June 2022

Duncan v. Bonta

(21-1194)

9th Cir.

28-Feb-2022

Challenge to California ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022




What do Recent Decisions on Federal Group Prohibitions Signal for Heller’s List of Presumptively Lawful Regulations?

In a September 19 decision in United States v. Quiroz, a judge in the Western District of Texas struck down the federal law barring those under indictment for a felony offense from receiving firearms, finding that the ban “departs from this Nation’s historical tradition of firearm regulation.”

One notable aspect of the decision is its treatment of the Supreme Court’s statement in Heller that the “opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons,” among other laws.  In Quiroz, the government argued that the Court’s endorsement of the felon-in-possession law necessarily meant that the felony indictment ban was also constitutional because those two laws have the same historical pedigree.  Judge David Counts’ opinion called this argument “a logical fallacy” and, perhaps more importantly, asserted that:

Heller’s endorsement of felon-in-possession laws was in dicta.  Anything not the “court’s determination of a matter of law pivotal to its decision” is dicta.  Dicta is therefore “entitled to little deference because they are essentially ultra vires pronouncements about the law.”  Or, as Francis Bacon put it, dicta is only the “vapours and fumes of law.” ‘

Less than a week later, in a decision dealing with a challenge to the federal felon-in-possession ban specifically (United States v. Collette), Judge Counts was slightly less direct in criticizing Heller’s dicta.  However, he stated that:

[T]his is where Bruen conflicts with Heller. Heller called proscriptions against felons possessing guns “presumptively lawful.”  In contrast, because possession is covered by the Second Amendment’s plain text, Bruen makes a felon’s possession of a firearm “presumptively constitutional.”  Bruen is the controlling standard, but this conflict—the presumption of constitutionality—is what places the heavy burden on the Government.

In general, comments or observations in an opinion that are not necessary to resolve the case at hand are dicta and are not binding on lower courts.[1]  As the Supreme Court has explained, “[t]he question actually before the Court is investigated with care, and considered in its full extent[, but o]ther principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”  Cohens v. Virginia, 19 U.S. 264, 399-400 (1821).

Notwithstanding this distinction, however, many appellate courts accord holding-level status to Supreme Court dicta.  Some circuits have precedential cases that essentially require lower courts to follow such dicta in almost all instances.  See, e.g., McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991) (“We think that federal appellate courts are bound by the Supreme Court’s considered dicta almost as firmly as by the Court’s outright holdings.”).  In fact, the 5th Circuit—which will consider the government’s appeal of the Quiroz decision—generally accords great deference to Supreme Court dicta.  See United States v. Becton, 632 F.2d 1294, 1296 n.3 (5th Cir. 1980) (“We are not bound by dicta, even of our own court. . . . Dicta of the Supreme Court are, of course, another matter.”) (emphasis added).  As Judge Pierre Leval describes, “[v]arious reasons are given [for treating Supreme Court dicta differently]: Great respect is owed to the Supreme Court; it always sits en banc, assuring that all of its Justices have participated in whatever it decides; its small docket means it will not likely hear enough cases to cover any area of law by its holding.” 

Of course, Quiroz was not a challenge to the felon-in-possession law.  But Judge Counts’ decision to disregard entirely the list of presumptively-lawful regulations from Heller is potentially indicative of a broader question about how lower courts will treat Heller’s dicta going forward after Bruen.  Prior to Bruen, courts upheld the laws that the Court enumerated as permissible in Heller.  For example, by 2018 lower courts had rejected 99% of the 273 challenges to the federal felon-in-possession law.  But the lower courts did not merely apply Heller’s dicta blindly.  Joseph Blocher and Eric Ruben’s empirical analysis of post-Heller decisions found that decisions invoking the “presumptively lawful” list were more likely to devote substantial space to legal analysis of Second Amendment claims, “suggesting perhaps that Heller’s exceptions are not being used as a shortcut to avoid scrutiny.”

And the lower courts certainly did not always apply the presumptively lawful list without voicing reservations about the approach.  For example, in a concurrence to the 10th Circuit’s 2009 decision in United States v. McCane, Judge Timothy Tymkovich agreed that the Court was obliged follow Heller’s dicta but noted with palpable frustration that the Court had provided its list of presumptively-constitutional regulations “without any explanation of how they would fare in light of the Second Amendment’s original meaning.”  Judge Tymkovich went on to suggest that “the existence of on-point dicta regarding various regulations short-circuits at least some of the analysis and refinement that would otherwise take place in the lower courts.”

While Bruen itself neither dealt with, nor provided substantive guidance on, the constitutionality of group prohibitions such as the felon-in-possession ban or other similar laws, the concurrence by Chief Justice Roberts and Justice Kavanaugh reproduced Heller’s list of presumptively lawful regulations in its entirety.  The majority opinion did not. 

What can we expect for Heller’s dicta moving forward?  First, it may be that the Bruen majority neglected to reproduce Heller’s list of permissible regulations because it finds the idea of the Supreme Court articulating permissible laws at odds with Bruen’s historical-analogical method.  The majority states that historical-analogical reasoning is “more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions.’”  Taking that statement at face value, it seems to clash with a judicially-dictated list of allowable regulations—if the historical record provides the most legitimate and faithful picture of what regulations were considered consistent with the Second Amendment when ratified, then it would appear that all laws should be evaluated solely by reference to history.  It’s hard to imagine that the Bruen majority is on board with the inscrutable method of the Supreme Court dictating permissible laws without explanation, especially when it believes that means-ends scrutiny is too judge-empowering. 

Perhaps the majority’s omission of the presumptively-lawful list was intentional, and the majority shares Judge Tymkovich’s view that this approach has inhibited doctrinal development in the lower courts.  This appears to be the exact concern that Judge Counts expressed in Collette—the idea that Bruen necessarily “conflicts” with Heller’s presumptively lawful list.  If correct, this would have major consequences going forward.  The felon-in-possession law itself, as Judge Counts observed, is simply not longstanding.  And the Founding-era evidence for banning even certain groups of felons from possessing guns is heavily contested and depends on the level of generality at which a judge approaches the inquiry.

On the other hand, as Jake has observed, Bruen contemplates a first-step inquiry that determines whether the “person, weapon, and conduct” are within the Second Amendment’s plain text.  By focusing only on conduct and not considering whether the person is within the scope at step one, Judge Counts’ analysis in Collette missed the mark.  There is no inherent conflict between Heller’s presumptively-lawful list and Bruen because Bruen still contemplates a step-one inquiry where certain groups of people are outside the scope of the amendment—without reference to analogous historical regulations.  There is not, as Judge Counts suggests, a presumption of constitutional protection for gun possession by all persons including felons, the mentally ill, and undocumented immigrants.  Such an approach is inconsistent with both Heller and Bruen

Second, there is perhaps a stronger rationale for according holding-level status to Supreme Court dicta in an area of law—such as the Second Amendment—where Supreme Court opinions have been few and far between.  With such little guidance from the Court, it seems even more appropriate for lower courts to adhere to dicta such as Heller’s list of presumptively lawful regulations.  And if lower courts are going to follow dicta, there’s a case to be made that they should treat it in the same way as they would an actual holding:  the list should be followed until or unless it is specifically revoked by the Court.  Bruen did not say anything explicit to cast doubt on Heller’s presumptively lawful list, the list can be mapped onto Bruen’s step one inquiry without any inherent conflict, and the most faithful route for lower courts is to read Bruen as a continued endorsement of the list.

Finally, Judge Counts’ decision in Quiroz raises the troubling prospect that courts may treat different pieces of Supreme Court dicta differently in Second Amendment cases.  Bruen, for example, appears to itself contain dicta in various places.  When the majority opinion makes broad pronouncements such as “we doubt that three colonial regulations could suffice to show a tradition of public-carry regulation,” or “late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence,” these statements are dicta if the actual basis for the Court’s holding is its subsequent detailed analysis of potential historical analogues.  The Court could have applied a blanket rule that three historical laws can never constitute a historical tradition of comparable regulation, a rule which would have obviated the need to do any analysis of the specific laws in question.  But the Court did not ultimately decide the case that way, so its passing observation that it is doubtful whether three laws could ever constitute a tradition was simply superfluous judicial commentary.  If courts are going to disregard Supreme Court dicta—notwithstanding cases suggesting that recent dicta is generally binding—they should at least be consistent in parsing opinions to distinguish between the central holding and statements that are merely ancillary and unnecessary to reach that holding.

[1] Black’s Law Dictionary defines dictum (or obiter dictum) as “[a] judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).” 




Worrying Trends In the Lower Courts After Bruen

There are several extremely worrying trends from what I’ve seen in the still nascent post-Bruen Second Amendment case law. These concerns don’t arise from disagreement with constitutional originalism or with the Supreme Court’s interpretation of the Second Amendment. They are concerns about lower courts’ capacity (and perhaps willingness) to apply a historical method in a way that appropriately sets the boundaries around the state’s role in securing public safety given the individual’s right to keep and bear arms. Whatever one’s views of the ultimate issue in these cases, the lower courts’ muddied attempts to implement Bruen should be concerning.

Bruen ushered in a test that requires courts to undertake a two-step inquiry when assessing challenges to gun laws. At step one, courts determine whether the “plain text” of the Second Amendment covers the challenged action. If the text does cover the action, the government then bears the burden of showing that the challenged regulation is consistent with the nation’s historical tradition of regulating firearms. In just the three months since the Court decided Bruen, lower courts are already showing the limits of a strictly historical test—at both stages of the Bruen inquiry.

  1. Step One Problems.

Recall that step one requires courts to ascertain whether what the challenger wants to do falls within the “plain text” of the Constitution. One could certainly take issue with that as the standard, ripe as it is with ambiguity and lack of guidance over what constitutes “plainness.” But even taking it at face value, lower courts are botching the inquiry.

  • Protected “Arms.”

In a case decided on September 23, Rigby v. Jennings, a federal judge in Delaware struck down provisions of Delaware’s new “ghost gun” law that prohibited distribution, possession, and manufacturing of unserialized firearms. Whatever one thinks of the outcome, the court’s reasoning is quite weak. In fact, it doesn’t even correctly apply what has long been—and Bruen seems to confirm as—the test for deciphering whether a weapon constitutes a protected “arm” at all: whether the weapon is in common use by law-abiding citizens for lawful purposes. Instead of requiring the plaintiffs to offer evidence that ghost guns are commonly used for lawful purposes, the court said the state “ha[d] offered no evidence to support the assertion [that such guns were not in common use].” It even expressly rejected the notion that the plaintiff bears the burden to show the weapons are part of the “plain text,” writing that “[i]t is, however, Defendant’s burden to prove that the challenged regulation does not implicate the Second Amendment.” But it simply cannot be the case that every weapon is presumptively covered unless the government proves it is not in common use. At the very least, it seems like the statistics offered by Delaware showing that ghost guns are frequently recovered from crime scenes would shift the burden back to the plaintiff to rebut that showing (for example, by offering some evidence of lawful use). The plain text Bruen step is a threshold inquiry and Bruen talks about the burden falling on the government at the second step, which only makes sense if the plaintiff bears the burden at step one.

  • Protected “People.”

In United States v. Quiroz, decided on September 19, the Western District of Texas struck down the federal law barring those under indictment for a felony offense from receiving (but not possessing) firearms during the pendency of the charges. At Bruen step one, the court misread the decision. The court read Bruen to allow only an inquiry into whether “the conduct” fell within the scope of the Second Amendment’s plain text and said that, for example, bans on felon firearm possession would clearly be within the Second Amendment’s plain text because they bar “possession,” i.e, “keep[ing]” arms and the person’s status is adjudicated only at the step two. That’s a mistaken reading of the opinion. Bruen frames the inquiry at step one in terms of “conduct” only because the case concerned conduct—public carry—not a question about what weapons are protected (“Arms”) or what people are covered (“the People”). In fact, when applying the method it announced, Bruen showed that these other inquiries are properly step-one “plain text” inquiries:

It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. Nor does any party dispute that handguns are weapons “in common use” today for self-defense. We therefore turn to whether the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense.

(Citations omitted). The Court understood step one to require that the person, weapon, and conduct fell within the Second Amendment’s “plain text” before moving to step two. The Quiroz court failed to apprehend this important point by focusing too narrowly on the specific challenge in Bruen. That decision matters for a host of reasons, including that if certain people, weapons, or conduct are outside the scope of the Second Amendment at step one, the government doesn’t then bear the burden of presenting a historical tradition to support its regulation (which may be all the harder if the original ratifying public understood something to be outside the scope altogether and so didn’t debate it as thoroughly as modern legislatures might).

  • Sensitive Places.

In Heller, the Court declared that governments may prohibit guns in certain “sensitive places” like schools and government buildings. Bruen reaffirmed the sensitive places carveout, and in fact used sensitive places as a prime example of how to conduct the analogical reasoning it now demands. But on August 31, 2022, a judge in the Northern District of New York, in Antonyuk v. Bruen, declared nearly the whole set of New York’s post-Bruen sensitive place designations unconstitutional with barely any analogical reasoning at all. What’s worse, the court stated that “the Supreme Court in [Bruen] effectively barred the expansion of sensitive locations beyond schools, government buildings, legislative assemblies, polling places, and courthouses.” Such a statement directly contradicts Bruen’s own language describing analogical reasoning and sensitive places. There, after listing several sensitive locations, the Court wrote that lower “courts can use analogies to those historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.” The emphasis in the original Bruen opinion on “new” makes the Antonyuk court’s reasoning all the more perplexing.

  1. Step Two problems.

Bruen’s second step requires the government to prove that a regulation implicating people, conduct, or arms falling within the “plain text” of the Second Amendment is consistent with the American historical tradition of firearms regulation. Bruen didn’t offer any guidance for how widespread—geographically or temporally—such a tradition must be, and lower court treatment to date does not provide confidence that district judges can figure out this question in a way likely to lead to predictability, consistency, or judicial restraint. Two cases—reaching opposite conclusions on the constitutionality of a challenged law—illustrate the problem.

Consider first the August 25, 2022 decision in Firearms Policy Coalition v. McCraw, issued by the Western District of Texas. In that case, the judge struck down Texas’s prohibition on handgun carrying by those under 21 years old, holding that 18-20 year olds have a Second Amendment right to carry and that the state had not met its burden to show that such restrictions were part of the nation’s historical tradition. Even though this was a challenge to a state law, where the Fourteenth Amendment’s incorporation of the Second Amendment made that amendment binding on Texas, the court considered Founding-era tradition to be the relevant benchmark. (Bruen helped create this mess by explicitly not deciding whether 1791 or 1868 should be the relevant time period for challenges to state laws under the Second Amendment.) That choice is debatable, but then the District Court stated that, even if it looked to Reconstruction-era history, Texas still failed to carry its burden because “[a]t most, Texas’s historical analogs show only that, by 1923, 22 states had laws imposing general restrictions on ‘the purchase or use of firearms’ for those younger than 21.” (Emphasis added.) But those restrictions, said the court, can’t support Texas’s prohibition. That’s quite a strange reading of history and use of analogical reasoning, and it seems to make the existence of regulations in nearly half the states insufficient to create a historical tradition!

Contrast FPC v. McCraw with National Association for Gun Rights v. City of San Jose, decided by the Northern District of California on August 3, 2022. There, the District Court upheld San Jose’s requirement that gun owners procure firearms liability insurance. In finding that the city had “presented a sufficiently ‘relevantly similar’ historical regulation” the court relied on surety laws—which could be used to require an armed person to post a peace bond upon a complaint or suspicion that they would breach the peace—as a relevant analogue. It granted the plaintiffs’ point that one distinction between the insurance mandate and surety laws was that the latter operated after-the-fact based on individualized suspicion of potential gun misuse. But the court held such a distinction immaterial for the purposes of establishing an analogue. The court did not mention or explore how widespread surety laws were, how often they were applied or enforced, or how long such laws stayed in effect. Bruen itself focused on these aspects of surety laws, so the absence of such investigation in this decision is strange. Although the bottom line conclusion is again debatable (in my opinion), the vastly different ways that a federal court in California and a federal court in Texas looked for historical analogues indicates that Bruen isn’t delivering on its promise of consistency, reliability, and a check on judicial imposition of policy preferences.




SCOTUS Gun Watch – Week of 9/26/2022

The Supreme Court’s “Long Conference” will take place this Wednesday, September 28.   At the long conference, the justices will consider the many petitions for certiorari filed over the summer as well as remaining earlier-filed petitions.  The odds of a grant of certiorari at the long conference are especially low, if history is any guide.  Many of the pending petitions on the tracker are up for consideration at the long conference, including:  multiple challenges to the ATF’s bump-stock ban;  a challenge to Massachusetts’ ban on handgun purchases by individuals convicted of certain gun-related nonviolent misdemeanors, and two licensing cases, including a vagueness challenge to a D.C. law that allows concealed-carry licenses to be revoked on the grounds that the gunowner exhibited “a propensity for violence or instability.”  These cases are bolded and italicized below. 

We’ll cover any major Second Amendment-related developments from the long conference on the blog in the coming days. 

 

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

Distributed for conference 28-Sept-2022

Morin v. Lyver

(21-1160)

1st Cir.

13-Dec-2022

Challenge to Massachusetts’ bar on handgun purchases for those with nonviolent misdemeanors

Distributed for conference 28-Sept-2022

Gun Owners of America v. Garland

(21-1215)

6th Cir.

3-Mar-2022

Challenge to the bump stock ban

Distributed for conference 28-Sept-2022

Baldea v. City of New York License Division of the NYPD

(21-1495)

NY App. Ct.

10-May-2022

Challenge to NYC gun license denial

Distributed for conference 28-Sept-2022; Response requested (due 31-Oct-2022)

Torcivia

v.

Suffolk County

(21-1522)

2d Cir.

31-May-2022

Challenge to warrantless home entry to seize firearms

Distributed for conference 28-Sept-2022; Response requested (due 11-Oct-2022)

Whitaker

v.

District of Columbia Concealed Pistol Licensing Review Board

(21-1545)

D.C. Ct. App.

7-Jun-2022

Challenge to DC gun license revocation standard

Distributed for conference 28-Sept-2022

McCutchen, et al.; The Modern Sportsman, et al.

v.

United States

(22-25)

Fed Cir.

8-July-2022

Challenge to ATF bump stock ban under 5th Amendment takings clause

Filed 5-July-2022; Response due 7-Oct-2022

Keith L. Carnes

v.

United States

(22-76)

8th Cir.

26-July-2022

As-applied challenge to 922(g)(3) and definition of “unlawful user of . . . any controlled substance”

Filed 26-July-2022; Response due 26-Sept-2022

 

Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Flick v. Rosen

(20-902)

11th Cir.

29-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Fleury v. Massachusetts

(20-1122)

App. Ct. Mass.

2-Nov-20

Challenge to Mass. firearm storage law

Cert Denied

Holloway v. Barr

(20-782)

3d Cir.

3-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Mai v. United States

(20-819)

9th Cir.

9-Dec-20

As-applied challenge to 922(g)(4)

Cert Denied

Folajtar v. Barr

(20-812)

3d Cir.

11-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Greer v. United States

(19-8709)

11th Cir.

8-Jun-2020

Scope of appellate review for Rehaif errors

Decided 14-June-2021

Caniglia v. Strom

(20-157)

1st Cir.

10-Aug-20

Fourth Amendment challenge to gun removal

Decided 17-May-2021

Hobbs v. United States

(20-171)

6th Cir.

13-Aug-20

Guilty plea under 922(g) without knowledge of disqualifying status

 

Cert Denied

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)

Decided 14-June-2021

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

McGinnis v. United States

(20-6046)

5th Cir.

13-Oct-20

As-applied challenge to 922(g)(8)

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

Knowles v. Hart

(20-840)

11th Cir.

17-Dec-20

Fourth Amendment challenge to use of deadly force against person with holstered weapon

Cert Denied

Libertarian Party of Erie County v. Cuomo

(20-1151)

2d Cir.

9-Feb-21

Challenge to New York’s pistol permit regime

Cert Denied

Keahey v. Marquis

(20-1298)

6th Cir.

16-Mar-21

Failure to give self-defense instruction

Cert Denied

Russell v. New Jersey

(20-1419)

N.J. Superior Ct.

2-Apr-21

Challenge to New Jersey’s good cause public carry law

Cert Denied

Reyes-Torres, v. United States

(20-7714)

5th Cir.

5- Apr-2021

Challenge to § 922(g)(5) (federal law barring undocumented immigrants from possessing firearms)

Cert Denied

Weber v. Ohio

(20-1640)

Ohio Sup. Ct.

21-May-21

Challenge to Ohio law barring carrying/using firearms while intoxicated

Cert Denied

Roundtree v. Wisconsin

(20-1706)

Wisc. Sup. Ct.

4-June-2021

Challenge to state law prohibiting firearm possession by non-violent felon

Cert Denied

Harley v. Garland

(21-104)

4th Cir.

22-July-2021

As-applied challenge to § 922(g)(9) (conviction for misdemeanor domestic violence offense)

Cert Denied

Bello v. Rockland County

(21-514)

2d Cir.

4-Oct-2021

Fourth Amendment and due process challenges to New York policies about the return of firearms after disqualification

Cert Denied

P.Z. v. New Jersey

(21-175)

N.J. Superior Ct.

4-Aug-2021

Challenge to N.J. law permitting firearms seizure/prohibiting possession pursuant to DV restraining order

Cert Denied

Hatch v. Minnesota

(21-667)

Minn. Sup. Ct.

1-Nov-2021

Challenge to Minnesota’s requirement that a person get a permit to carry in public

Cert Denied

Zaitzeff v. Seattle

(21-910)

Wash. Ct. App.

16-Dec-2021

Challenge to Seattle ordinance barring the public carry of certain knives

Cert Denied

Marshall v. BATFE

(21-1155)

4th Cir.

17-Feb-2022

Challenge to 4th Circuit decision vacating opinion striking down under-21 handgun purchase ban

Cert Denied

Rodrigues v. County of Hawaii

(21-895)

9th Cir.

13-Dec-2021

Challenge to arrest on weapons’ charges given the Law Enforcement Officers Safety Act (LEOSA)

Cert Denied

Cassidy v. Massachusetts

(21-1249)

Mass. App. Ct.

1-Mar-2022

Challenge to permit requirement for home firearm possession

Cert Denied

Turner v. Brannon-Dortch

(21-1341)

7th Cir.

4-Apr-2022

Challenge to trial questioning about “illegal” gun that was lawfully licensed

Cert Denied

McCloskey, Petitioner

v.

Missouri Office of Chief Disciplinary Counsel

(21-1440)

Mo. Sup. Ct.

9-May-2022

Challenge to attorney discipline for firearms-related conduct on Second Amendment and due process grounds

Cert Denied

New York State Rifle & Pistol Association v. Bruen

(20-843)

2d Cir.

17-Dec-20

Challenge to New York’s good cause public carry regime

Decided 23-June-2022

Association of New Jersey Rifle & Pistol Clubs v. Bruck

(20-1507)

3d Cir.

26-Apr-21

Challenge to New Jersey ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022

Young v. Hawaii

(20-1639)

9th Cir.

11-May-21

Challenge to Hawaii’s restrictive open carry law

Granted, vacated and remanded 30-June 2022

Bianchi v. Frosh

(21-902)

4th Cir.

16-Dec-2021

Challenge to Maryland’s assault weapons ban and to the methodology used for 2A questions

Granted, vacated and remanded 30-June 2022

Duncan v. Bonta

(21-1194)

9th Cir.

28-Feb-2022

Challenge to California ban on magazines holding 10 rounds or more

Granted, vacated and remanded 30-June 2022




State Court Justice Questions How to Apply Bruen

In a recent case pending before the Ohio Supreme Court, State v. Philpotts, a majority of the justices sua sponte ordered the parties to file supplemental briefs addressing Bruen’s effect on the case. The challenged Ohio law in that case bars those under indictment for violent felonies from possessing firearms pending the disposition of the indictment. The lower courts upheld the statute under intermediate scrutiny pre-Bruen. Bruen was about public carry, not categorical prohibitions on gun possession, but its transformation of the methodology for Second Amendment challenges may mean that even some prohibited possessor laws will be reexamined. The court’s supplemental briefing order isn’t all that noteworthy on its own—judges have ordered supplemental briefing in many cases that were either pending when Bruen was decided or remanded post-Bruen. What is noteworthy is the opinion dissenting from that order.

Justice Jennifer Brunner’s dissent raised a number of issues with both the court’s order and how to conduct the test Bruen articulated. I don’t think the whole dissent is necessarily persuasive or compelling, but her concerns do raise fundamental questions about how to implement Bruen. First, she questioned the propriety of the court’s supplemental briefing order given the nature of the Bruen test. That test, she argued, turns on factual questions about “the United States’ historical tradition of firearm regulation in relation to Ohio’s gun laws” that “should be developed in and determined by a trial court, not an appellate court.” Because history requires finding facts and drawing inferences from facts, she concluded: “Fundamentally, no appellate court should be the fact-finder in determining the tradition of gun regulations during different eras of our nation’s history, including how and why guns may have been regulated.” These observations seem right, but I’m not aware of courts that have treated an originalist-driven historical inquiry as a factual one—i.e., a finding that must generally be made by a jury and is subject to deference on appeal. Then again, the Supreme Court rendered the Second Amendment sui generis in constitutional adjudication, so litigants may raise this issue in the future.

Second, Justice Brunner registered her “concerns about how ‘history’ or historiology can become part of a legal analysis, as this court embarks on the legal equivalent of asking whether a modern translation of the Bible accurately conveys the teachings of the original texts.” I’m not sure the specific analogy she uses makes much sense, but she does intervene in a debate that’s recently come to the fore as originalism becomes the reigning ideology at the U.S. Supreme Court. Jack Balkin’s article, Lawyers and Historians Argue about the Constitution, explores some of these tensions. They have also been debated between legal scholars defending originalism (e.g., Randy Barnett, here, and Will Baude & Steve Sachs, here) and historians critical of originalists’ uses of history (e.g., Jonathan Gienapp, see here and here for example). The lawyers often concede that they aren’t doing history the way historians might, but are instead looking to history for a different purpose and with different goals. In doing so they rely, as Baude & Sachs put it, and Justice Thomas quoted with approval in Bruen, on “various evidentiary principles and default rules,” like burdens of proof and party presentation. In her dissent, Justice Brunner noted that professional historians describe revising historical interpretations over time as new evidence becomes available as part of their core mission, and that a historian’s work inevitably involves interpreting—and not merely collecting—data.

Finally, in an attack that could apply beyond the question of Bruen, she challenged what’s missing in our historical traditions:

Importantly, the glaring flaw in any analysis of the United States’ historical tradition of firearm regulation in relation to Ohio’s gun laws is that no such analysis could account for what the United States’ historical tradition of firearm regulation would have been if women and nonwhite people had been able to vote for the representatives who determined these regulations.  How would this problem be addressed in any modern analysis of historical gun regulations?  It cannot simply be ignored.  And even if a court tries to take the views of women and nonwhite people into account, are there sufficient materials on their views available to enable reliable conclusions to be made?

Justice Brunner was seemingly unable to convince any colleagues to join her dissent. It’s not clear how persuasive her points will be to the court’s ultimate resolution of Philpotts (the Ohio Supreme Court consists of 4 Republican justices and 3 Democratic ones). But whether they play a role in this case or not, her questions about the use of history in Second Amendment cases will continue to recur as lower courts work to implement Bruen.




Justice Thomas’ Dissent in Voisine and Non-Felon Prohibitions

As litigators and judges grapple with Bruen’s historical tradition test, one issue that is sure to surface repeatedly is the status of group prohibitions on gun possession.  Notably absent from the list of “presumptively lawful” restrictions in Heller is the federal prohibition on gun possession by those convicted of domestic-violence misdemeanor offenses, codified at 18 U.S.C. § 922(g)(9).  The provision was recently expanded by the Bipartisan Safer Communities Act to cover offenses against non-spouse victims with whom the perpetrator has a “continuing serious relationship of a romantic or intimate nature.”

The Supreme Court considered the domestic-violence prohibitor in a 2016 case, Voisine v. United States.  Federal law defines “misdemeanor crime of domestic violence” as a crime under state law “that has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.”  The question in Voisine was whether reckless (as opposed to knowing or intentional) assault on a spouse or family member met the “use of force” element and supported disarming the perpetrator.  The petitioners were two men convicted of domestic violence offenses and later charged with possessing firearms in violation of 922(g)(9), who both argued that their domestic-violence convictions were for state-law offenses that could have been committed with merely reckless intent and thus did not qualify under the federal prohibitor.

In a 6-2 decision (the case was argued just weeks after Justice Scalia passed away, and decided well before Justice Gorsuch’s confirmation), the Court affirmed the First Circuit’s determination that 922(g)(9) “encompasses acts of force undertaken recklessly—i.e., with conscious disregard of a substantial risk of harm.”  Justice Thomas, joined in part by Justice Sotomayor, dissented from the decision.  Justice Thomas would have held “that the ‘use of physical force’ requires intentional conduct.”  Because the Maine statute under which the petitioners were both initially convicted “criminaliz[ed] all reckless conduct, [it] capture[d] conduct such as recklessly injuring a passenger by texting while driving resulting in a crash”—conduct which Justices Thomas and Sotomayor found beyond the intended scope of 922(g)(9):

In sum, “use” requires the intent to employ the thing being used. And in law, that intent will be imputed when a person acts with practical certainty that he will actively employ that thing. Merely disregarding a risk that a harm will result, however, does not supply the requisite intent.

Because he found that Congress did not intend “to sweep in all reckless conduct” under the domestic-violence prohibitor, Justice Thomas would have held that the convictions at issue were insufficient (under a categorical approach) to support a prosecution under 922(g)(9) for unlawful possession of firearms.  Justice Thomas also wrote, in a section not joined by Justice Sotomayor, that, “[t]o be constitutional, . . . a law that broadly frustrates an individual’s right to keep and bear arms must target individuals who are beyond the scope of the ‘People’ protected by the Second Amendment,” and opined that there was no “other fundamental constitutional right that a person could lose forever by a single conviction for an infraction punishable only by a fine.”

Much of the discussion in Voisine focused on a theoretical debate about mens rea and the common law definition of battery.  The justices posited several hypothetical scenarios, including:  (1) someone who throws a plate or bottle intending to hit the wall, but hits their spouse instead; (2) someone who texts while driving, causing an accident that injures their spouse; and (3) someone who slips while holding a door for their spouse, causing the door to hit and injure the spouse. 

The justices debated which of the above scenarios might be covered by 922(g)(9), with the majority stating that the “use” of physical force necessarily imposes volitional limits on the scope of the prohibitor while still applying to reckless offenses generally (so, for example, someone who loses their grip on a soapy dish and hits their spouse would not be covered, while the plate or bottle-thrower would be).  Justices Thomas and Sotomayor, on the other hand, would have found conduct such as the case of the text-messaging driver to not involve the use of force and thus be outside the scope of the prohibitor, even though such conduct is “reckless” at common law (“[T]he majority overlooks the critical distinction between conduct that is intended to cause harm and conduct that is not intended to cause harm.”).  Therefore, in their view, the government’s preferred reading of 922(g)(9) to include all reckless conduct was inconsistent with congressional intent.

One primary concern about the analysis in Voisine, which arose during oral argument in that case, is that it was decided amid an uncertain post-Heller legal backdrop.  After Bruen, the more fundamental question seems to be whether 922(g)(9) is sufficiently rooted in historical tradition given the lack of direct analogues throughout most of American history

Some portions of the oral argument transcript in Voisine, however, suggest how Justice Thomas, at least, might view the question and highlight issues with applying Bruen’s historical-analogical approach to misdemeanor-based disqualification generally.  Notably, Voisine marked Justice Thomas’ first question at oral argument in over 10 years.

JUSTICE THOMAS: Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a State law?

. . .

MS. EISENSTEIN: . . . [T]he evidence that Congress relied on and ­­– and that the courts below that have addressed the Second Amendment concerns that Your Honor is highlighting have even gone into a more robust analysis of the –­­ the evidence that ties initial crimes of battery to future gun violence. That evidence is extremely strong. And Congress recognized that this was a recurring escalating offense.

. . .

So –­­ so I understand Your Honor’s concern that –­­ that this is a potential infringement of individual’s Second Amendment rights, but I believe that Congress has identified a compelling purpose and has found a reasonable means of achieving that purpose.

Two things stand out from this exchange.  First, it seems to indicate that Justice Thomas is suspicious of the entire enterprise of disarming misdemeanants—whether domestic violence offenders, violent misdemeanants, or otherwise.  But what of Bruen’s historical approach and the fact that a neat felony/misdemeanor dividing line did not exist at the time of the Founding?  As Will Tress describes, U.S. states gradually formulated the modern distinction in an iterative process over time that settled on the nature of punishment (fine vs. imprisonment) as the key distinguishing factor and converted certain crimes that were not considered felonies at common law into felonies (such as arson, for example) by making offenders subject to prison terms.  Justice Thomas’ question underscores one major problem with using Founding-era history to determine the scope of group prohibitors:  even the originalist will gravitate toward judicial rules, such as the felony-misdemeanor distinction, that were fundamentally different in 1791.  Although the terms “felony” and “misdemeanor” certainly existed at the time, their substantive meaning has changed significantly and it was not foreseen in the Founding Era that states would settle on the fine vs. imprisonment dividing line.  

Second, in response to Justice Thomas’ query about whether any other constitutional right can be suspended indefinitely upon a misdemeanor conviction under state law, Justice Kennedy offered one suggestion during oral argument:  the requirement that sex offenders “register before they can travel in interstate commerce” under SORNA.  An additional potential example is domestic violence restraining orders and the First Amendment’s freedom of association.  Civil restraining orders can often be issued upon “reasonable proof” of acts of abuse, and curtail the subject’s freedom to associate with certain individuals (in some cases permanently, after an additional hearing).  To be sure, there can be substantial overlap between the conduct that gives rise to a civil restraining order and conduct circumscribed by the criminal law.  But consider that cyberstalking—behavior where we might expect the empirical basis for disarming perpetrators to be quite strong—is in some instances not criminalized at all, or only criminalized under misdemeanor harassment laws.  Especially in thinking about the future of misdemeanor-based prohibitions, targeted cyberstalking is a far cry from texting while driving.