This Week’s SCOTUS Action on Pending Second Amendment Petitions

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 of the Long Conference, the Court did, however, dispose of two of the cases it recently considered:

Armament Services v. Barr 3d Cir. 19-June-19 What constitutes a “willful” violation of the Gun Control Act for revocation of a Federal Firearm License distributed 1-Oct-19 conference & cert denied 7-Oct-19
Miller v. Ferguson 9th Cir. 23-July-19 Ban on firearm possession (as sufficient restraint to invoke habeas) distributed 1-Oct-19 conference & cert denied 7-Oct-19

These were probably the two least likely to be affected by any outcome in NYSRPA, so it’s perhaps not surprising that the Court acted on them now.

The Court also denied the City’s Suggestion of Mootness in NYSRPA. But it also said that “[t]he question of mootness will be subject to further consideration at oral argument, and the parties should be prepared to discuss it.” There’s no doubt, then, that we’ll soon have oral argument in a case raising a Second Amendment challenge for the first time since March 2, 2010.



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

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 New York’s law is such an oddity that the city itself has effectively disclaimed any interest in it.

One way to get a handle on just how unusual the Heller, McDonald, and NYSRPA laws were/are—and what that might mean for the Court’s doctrinal response—would be to figure out how many people have ever been prosecuted for violating them. If the laws have been actively enforced, then one could make a stronger case for a stringent test to prevent government overreach. If they have not, then there is some danger of—as Justice Blackmun put it in Lucas—such a test being the equivalent of launching a missile to kill a mouse.

Unfortunately, I do not know of an easy way to get reliable information on the relevant prosecution history. The litigation materials themselves turn up a few interesting but inconclusive nuggets. At oral argument in Heller, Alan Gura seemed to acknowledge that no one had ever been prosecuted for violating the particular DC law at issue: “And, in fact, there is a prosecution history not under this specific provision,” though the “laws that we are challenging here today to prosecute people for the possession or for the carrying of a prohibited firearm even when the police ruled the shooting has been lawful self-defense.” (oral argument transcript at pg. 50) Neither McDonald nor NYSRPA arose from a prosecution.

Of course, a prosecution isn’t necessary to establish standing (Dick Heller was denied a permit, which is enough), and it’s perilous to read too much into silences, but the lack of references to such prosecutions in the cases themselves does raise the question of how the laws the Court struck down actually operated in practice.

Duke research librarian extraordinaire Jennifer Behrens pointed me to some resources on arrest data that might be illuminating. New York City, for example, provides some arrest data online, at least back to 2006, but it’s tough to search, in part because there are many different rules that could be implicated by gun possession in the city: N.Y. Penal Law §§265.01, 265.20(a)(3) (prohibiting some handgun possession – a misdemeanor); N.Y. Penal Law §400.00 (the licensing requirement – a misdemeanor); 38 R.C.N.Y. §5-23(a)(3) (the city rule on transporting to shooting ranges, violations of which result in revocation/cancellation of permit). Chicago seems to have similar data available, though I haven’t been able to make heads or tails of it just yet.

All of which still leaves me wondering how actively these laws have been enforced, and I’d welcome any pointers on how to figure that out.

To be clear, there is nothing necessarily wrong or unprecedented with the Justices granting cert to review the constitutionality of an unusual law. Many landmark constitutional cases involve outlier laws—Griswold v. Connecticut is an easy example. But even in Griswold (and Bowers v. Hardwick, for that matter), the petitioners were actually arrested and convicted.

If the gun laws that the Justices are seeing not only are outliers vis-à-vis the general sweep of gun regulation, but also lack bite in practice, that may have implications for the doctrinal rules they announce. In Heller and McDonald, the Justices struck down the outliers without articulating an over-arching standard of review or other doctrinal framework for Second Amendment challenges as a whole. One of the questions surrounding NYSRPA is whether they will do the same again.

The Other Supreme Court Challenges

The Supreme Court in January agreed to hear its first Second Amendment challenge after a decade of (relative) silence. But other than New York State Rifle & Pistol Association v. City of New York (NYSRPA), there are—by my count—five other pending petitions asking the Court to review lower courts’ Second Amendment (or related firearms) rulings, with more likely to join in the coming months. Here are the pending petitions and where they stand:

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 for

6-June-19 conf.

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

6-June-19 conf.

It’s possible that the Supreme Court is holding some or all of these petitions to assess how NYSRPA could affect them. Or, it may be holding them in case NYRSPA goes away altogether. If granted, any of these cases has the potential to result in monumental changes to Second Amendment law.

As well as the currently pending petitions, there are several cases in which the parties may (and in some case have said they will) seek Supreme Court review in the coming months. For example, in the case arising from the Sandy Hook massacre, Remington Arms has indicated that it will seek Supreme Court review. Its petition for certiorari in that case—Remington Arms v. Soto—is currently due August 1. That case is not a Second Amendment challenge, but about whether the Protection for Lawful Commerce in Arms Act (PLCAA) bars the plaintiffs’ claims against Remington. There are also several as-applied challenges to firearm prohibitions for felons that appear ready for Supreme Court review, such as Kanter v. Barr and Medina v. Whitaker , though it remains to be seen whether the parties in these case will ultimately seek review. Then there are other percolating challenges, like the one to Massachusetts’s ban on assault weapons and high-capacity magazines in Worman v. Healy, that may also present opportunities for the Supreme Court to weigh in. Just like batch of pending cases, these too have the potential to effect radical change in Second Amendment (or related) doctrine.