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SCOTUS Gun Watch, Episode 2

Posted by on October 28, 2019

Although the Supreme Court issued no new orders this week, there’s been some movement in the cases pending before the Court. Below isthe updated graph with the now-current status of the high court’s gun docket.

New Blog Feature: SCOTUS Gun Watch, Episode 1

Posted by on October 21, 2019

We’re excited to announce a new blog feature that will be a recurring Monday fixture of the blog throughout the Supreme Court’s Term. Each week, we will provide an up-to-date run down of where things stand with the Court’s firearms law and Second Amendment docket. To that end, each Monday will feature an updated chart […]

Litigation Highlight: New Cert Petition in Culp v. Raoul

Posted by on October 17, 2019

Last week, several plaintiffs filed a petition for certiorari asking the Supreme Court to review a Seventh Circuit decision upholding Illinois’s refusal to allow most non-residents to apply for a concealed-carry license. Here’s from the Question Presented: This Court has held that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in […]

This Week’s SCOTUS Action on Pending Second Amendment Petitions

Posted by on October 11, 2019

As I highlighted at the beginning of the week, heading into the new Term, the Supreme Court had (by my count) 14 outstanding petitions for certiorari raising Second Amendment or firearms-law related questions. Many of these cases had been considered at conferences last Term and, we suspect, are being held pending the outcome in NYSRPA. Coming out […]

Outstanding Second Amendment and Firearms Law Cert Petitions

Posted by on October 4, 2019

As the Supreme Court starts its new Term, with one Second Amendment case docketed (for now), it seems like a good time to review the outstanding petitions awaiting action at the Court. These petitions raise a variety of Second Amendment and firearms-related issues, including important questions of statutory interpretation and the scope of agency discretion. […]

Did the Supreme Court Dictate Lower Courts’ Second Amendment Interpretive Theory?

Posted by on October 3, 2019

In Ezell v. City of Chicago, the Seventh Circuit concluded that it had “to follow the Court’s lead in resolving questions about the scope of the Second Amendment by consulting its original public meaning as both a starting point and an important constraint on the analysis.” In other words, the Seventh Circuit thought it was […]

Two New Second Amendment Cert Petitions

Posted by on September 26, 2019

In the last few weeks, two new cert petitions have been filed asking the Supreme Court to review recurrent issues in litigation over the right to keep and bear arms. Below are links to the petitions and excerpts of their Questions Presented. We’ll be watching these as the Court comes back to a new Term […]

Litigation Highlight: Duncan v. Becerra

Posted by on September 18, 2019

In March, a federal district court in California became the first federal court in the land to strike down a ban on large-capacity magazines. In a striking opinion stretching for 86 pages, Judge Roger Benitez touted the timeless principles of “[i]ndividual liberty and freedom” when he held that California could not constitutionally prohibit the transfer […]

Heller and the Vagaries of History

Posted by on September 16, 2019

By now, Heller’s central holding is familiar: whatever other restrictions it may impose, the government cannot ban handgun possession in the home because “the American people have considered the handgun to be the quintessential self-defense weapon.” But what “people” made that choice? Not The People who ratified the Second Amendment in 1791. For them, the […]

SCOTUS Watch: Daniel v. Armslist, LLC

Posted by on September 13, 2019

In 2012, Zina Daniel Haughton obtained a restraining order against her husband after he threatened to kill her. This restraining order prohibited the husband from possessing a firearm. Nonetheless, a few days later he posted a want ad on armslist.com seeking to buy a gun. He found a willing seller, arranged a meeting in a […]

Heller’s Dicta?

Posted by on September 4, 2019

A few weeks back, I highlighted the fact that there’s a surprising amount of congruence among the federal circuit courts in applying Heller. There’s uniformity on the methodological approach and on the constitutionality of a host of otherwise controversial public policies, like bans on assault weapons and high-capacity magazines. I also noted several substantive circuit […]

Where Are All the Second Amendment Circuit Splits?

Posted by on August 16, 2019

Gun debates are notoriously contentious and controversial, and they seldom lead to consensus. Gun litigation is a different story. In the hundreds of Second Amendment challenges in the federal courts since Heller, there has been surprising judicial agreement. Among federal courts of appeals, there is near-consensus on most questions. There are some noteworthy circuit splits, […]

Common Cause, Clear Standards, and Heller’s Second Amendment

Posted by on August 14, 2019

  In Rucho v. Common Cause, the Supreme Court declared that partisan gerrymandering is a nonjusticiable political issue.  Two factors seem key to the Court’s holding: the difficulty of finding a manageable standard to assess such claims and the thorny expansion of judicial review into an area of deep political controversy. Some of these same […]

The “Handgun Article” in Justice Powell’s Papers

Posted by on August 8, 2019

Twenty seven years ago this week, Justice Powell’s clerk sent him a lengthy fax with the subject line “Handgun Article.” Along with Justice Stevens’ post-retirement commentary (about which Darrell and I will have more to say shortly), I think it might be the most thorough statement of a Justice’s views on guns and the Second […]

The Similar Debates Over Gun Rights and Abortion

Posted by on July 29, 2019

Arguments about the right to keep and bear arms and the right to reproductive autonomy share a number of similarities. And, shortly after Heller, Judge J. Harvie Wilkinson underscored similarities in the how Court’s decisions in Roe and Heller removed controversial political issues from the realm of democratic choice, in what Judge Wilkinson thought improper […]

Some Topics and Learning Objectives for Second Amendment Courses

Posted by on July 11, 2019

An enjoyable feature of teaching Second Amendment is the flexibility and variety of possible approaches. A professor can use a wide variety of materials, depending on learning objectives. Social science, current policy debates, and political philosophy are easily included, if one wants. I use our textbook Firearms Law and the Second Amendment. It aims to […]

“A Rogue’s Gallery of Offenses,” Part II: Davis and Law Enforcement

Posted by on July 1, 2019

Last week, I wrote about the Supreme Court’s decision in Rehaif v. United States and how that decision, along with United States v. Davis, produced interesting lineups and may lead to big changes in the enforcement and prosecution of gun crimes. Today, I want to focus on Davis—and what it means for the future.

“A Rogue’s Gallery of Offenses”: Implications of Rehaif and Davis for Prosecuting Gun Crimes

Posted by on June 25, 2019

In the past week, the Supreme Court issued two decisions likely to have a major impact on gun prosecutions: Rehaif v. United States, in which the Court tossed out an immigrant’s conviction for unlawful possession of a firearm, and United States v. Davis, in which the Court tossed out a pair of convictions for possessing […]

“Presumption of Constitutionality”

Posted by on June 21, 2019

On Thursday, in American Legion v. American Humanist Association, the Supreme Court held that a Latin cross installed over ninety years ago on public land to commemorate fallen World War I soldiers did not violate the Establishment Clause.    In doing so, Justice Alito, writing for the plurality, shied away from the much-criticized Lemon test and […]

Forging Con Law Through a Gun Regulation Lens

Posted by on June 19, 2019

In reading the Supreme Court’s recent double-jeopardy opinion, Gamble v. United States, it struck me just how many major constitutional law cases involve guns and guns laws, even if sometimes at the periphery. Gamble, for instance, complained that his state law conviction for being a felon in possession of a firearm precluded his indictment under […]

Hints from Parker Drilling for the Sandy Hook Litigation?

Posted by on June 13, 2019

Earlier this week, the Supreme Court unanimously decided a sleepy statutory interpretation question concerning the Outer Continental Shelf Lands Act. That case, however, may contain clues about how the Court could approach the interpretive question involved in the Sandy Hook litigation over the Protection for Lawful Commerce in Arms Act (PLCAA).

Cert Petitions Update

Posted by on June 12, 2019

Last week, we highlighted the five pending petitions asking the Supreme Court to review gun-related rulings. We’ve got one update, in which the Court denied cert, and one to add to the “watch list.”

PLCAA, Sandy Hook, and Appealability

Posted by on June 10, 2019

The Connecticut Supreme Court recently allowed a suit arising from the Sandy Hook shooting to proceed against Remington. In doing so, it rejected Remington’s argument that the Protection for Lawful Commerce in Arms Act (PLCAA) bars the suit. Remington plans to seek U.S. Supreme Court review. But can it seek that review now?

Changed (Judicial) Circumstances

Posted by on June 6, 2019

In a sign that litigants are hoping the changed composition of the Supreme Court—Justice Kavanaugh’s replacement of Justice Kennedy—will lead to reconsideration of some lower court Second Amendment precedents, plaintiffs recently brought a lawsuit challenging Maryland’s requirement that an applicant for a concealed carry permit show a “good and substantial reason” in order to obtain […]

How Many People Were Ever Prosecuted Under the Laws Challenged in Heller, McDonald, and NYSRPA?

Posted by on June 5, 2019

In Heller, McDonald, and now potentially in NYSRPA, the Supreme Court established Second Amendment principles that have been the basis for more than 1,000 Second Amendment challenges in the past ten years. Notably, each of the Supreme Court’s cases involved an outlier law—DC and Chicago were the only notable US cities with handgun bans, and […]

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