Cert Petitions Update

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.”

As a reminder, below are the five cases we highlighted.

Case Court Below Date of Petition Challenged Law Status
Mance v. Barr 5th Cir. 19-Nov-18 Federal ban on out-of-state handgun purchases distributed at

12-Apr-19 conf.

Rogers v. Grewal 3rd Cir. 20-Dec-18 “May issue” public carry regime distributed at

23-May-19 conf.

Pena v. Horan 9th Cir. 28-Dec-18 California’s Unsafe Handgun Act (microstamping, etc.) distributed at

12-Apr-19 conf.

Kettler v. United States 10th Cir. 14-Jan-19 National Firearms Act (under taxing power); whether silencers are protected under the Second Amendment distributed at

6-June-19 conf.

Gould v. Lipson 1st Cir. 1-Apr-19 “May issue” public carry regime distributed at

6-June-19 conf.

On Monday, the Supreme Court denied the petition in Kettler. That means the Court won’t hear argument on whether silencers are protected under the Second Amendment. Interestingly, the Court also considered Gould at the same conference as Kettler, but took no action on the petition.

And, along with the other not-yet-pending-but-cases-to-watch, we have another to add to the list. As Dru Stevenson helpfully reminded us, the D.C. Circuit decision allowing the Trump Administration’s bump-stock ban to go into effect, Guedes v. ATF, is ripe for Supreme Court review. The fact that the challengers (unsuccessfully) sought a stay from the Supreme Court before the law went into effect may indicate their appetite for continuing the challenge.

Changed (Judicial) Circumstances

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 one. The Fourth Circuit upheld the regime six years ago in Woollard v. Gallagher. In the most recent case, Malpasso v. Pallozzi, the challengers conceded in the district court and 4th Circuit that Woollard was binding and could not be overruled except by the en banc court or by the Supreme Court.

In late April, the panel (Floyd, Quattlebaum, Traxler) accordingly affirmed the district court’s dismissal of the complaint. Because the challengers brought the case knowing they could not possibly win in the district court or at the panel level, there’s every reason to believe they will seek Supreme Court review. (According to my calculations, the time has run for the challengers to seek en banc review.) The Malpasso challengers have retained the same counsel that filed the still-pending cert petitions in Grewal and Gould challenging similar licensing frameworks in New Jersey and Massachusetts.

The hope that a different Supreme Court will change the existing legal landscape for Second Amendment cases is of a piece with challenges designed to do that more broadly, as the recent spate of laws seeking to challenge Roe v. Wade illustrate.