Is this the next Supreme Court Second Amendment case?
Ivan Antonyuk, et al v. Steven G. James, et al No. 23-910
“The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion).”
That is a quote from Justice Thomas in his majority opinion in NYSRPA v. Bruen (2022). Justice Alito wrote the opinion in McDonald v. City of Chicago (2010). Justice Thomas wrote a concurrence in McDonald in which he agreed with everything in the plurality opinion other than which part of the 14th Amendment the Second Amendment should be applied against the states.
Despite this admonition, the Supreme Court has rejected, year after year, Second Amendment petitions without a peep from any of the justices. And it has done so despite the arrogant, unabashed, flagrant disregard the lower courts have shown for the Second Amendment.
This term, the Supreme Court granted a lone Second Amendment cert petition in US v. Rahimi, but that was only because the Federal government had lost in the Fifth Circuit Court of Appeals.
There is one pending Second Amendment cert petition before the justices that has a better chance of being granted than the proverbial snowball in Hell. The case is Ivan Antonyuk, et al., v. Steven G. James, et al.
The questions presented to the Court for review in Antonyuk are: 1. Whether the proper historical time period for ascertaining the Second Amendment’s original meaning is 1791, rather than 1868; and 2. Whether “the people” must convince government officials of their “good moral character” before exercising their Second Amendment right to bear arms in public.
If this petition is granted, it will only be granted as to the first question. SCOTUS had the opportunity to answer the “good moral character” question presented in another case from the same Federal circuit but declined to do so late last month.
In her concurrence to NYSRPA v. Bruen, Justice Barret criticized the Court for not nailing down the relevant time that judges should look at when deciding Second Amendment cases. Is it 1791 when the Second Amendment was enacted? Is it 1868 when the Fourteenth Amendment was enacted? Do judges get to look at post-14th Amendment history in order to decide what the Second Amendment meant in 1791?
A cert petition requires the vote of four justices to grant (five justices to grant a petition before judgment or to issue a per curiam).
Even the first question presented would not have warranted a closer look at the Antonyuk case were it not for something unusual happening with it. Antonyuk was one of 14 Second Amendment petitions scheduled for last Thursday’s private conference of justices, where the justices vote on which petitions they will grant. Seven Second Amendment cert petitions were denied. The six “assault” weapon and/or “large capacity” magazine petitions were relisted to this Thursday’s SCOTUS conference, but Antonyuk was neither denied, granted, nor relisted for this Thursday’s conference. Why is it being held? Could Justice Barret be the fourth vote needed to grant the petition?
So far this term, the Second Amendment cert petitions that went to a conference for a vote, survived, but were not relisted for a subsequent conference are all Federal cases involving violations of Federal law where the government has asked the justices to hold the case pending the disposition of a related case the justices had already decided to hear (e.g., US v. Rahimi). New York did not ask SCOTUS to hold the petition pending the disposition in Rahimi. Indeed, in footnote 16, the respondents said they took no position on holding the case pending Rahimi.
Adding all of this up, my crystal ball tells me that Antonyuk has the best chance of being granted and decided on the merits next term. Or the petition could be granted, the decision of the Second Circuit Court of Appeals vacated, and the case remanded back to the Second Circuit for proceedings consistent with the SCOTUS decision in Rahimi.
It is highly unlikely that any of the six preliminary injunction cert petitions out of Illinois will be granted. In addition to being interlocutory petitions (which are very rarely granted), this Thursday is the fifth conference they will have gone to. In years past, the probability of a cert petition being granted plummeted after its fourth conference. As this has been an unusual term with relatively few cert petitions being granted and half of the opinions still not published, I decided to make a frequency distribution of the conferences for the petitions that were granted.
Ten cert petitions were granted in their first conference, 25 in their second conference, 12 in their third conference, 6 in their fourth conference, and 1 in their fifth conference; none were granted in a sixth conference, and one was granted in their seventh conference. Two outliers, a dispute between the states and a death penalty case, went to 9 and 16 conferences. Four cases the justices heard oral arguments on were unusual grants without being listed for a conference. One was Trump v. US.
There are only two conferences left this term, not counting the “long conference” at the end of September, where the cert petitions that were not decided before the justices went on vacation at the end of June and those petitions that accumulated over the Summer are disposed of.
A betting man would bet that all six of the Illinois rifle and magazine ban petitions will be denied. Perhaps they have been relisted to give a justice time to write a dissent to the denial of granting the petitions. Or perhaps not. On June 15, 2020, ten Second Amendment cert petitions were denied after having been listed to a conference for a vote 7-8 times. A dissent was filed in only one of the denials.
Quoting from Justice Thomas' dissent to the denial of that lone cert petition (joined in part by Justice Kavanaugh):
"Petitioner asks this Court to grant certiorari to determine whether New Jersey’s near-total prohibition on carrying a firearm in public violates his Second Amendment right to bear arms, made applicable to the States through the Fourteenth Amendment. See McDonald, 561 U. S., at 750; see id., at 806 (THOMAS, J., concurring in part and concurring in judgment). This case gives us the opportunity to provide guidance on the proper approach for evaluating Second Amendment claims; acknowledge that the Second Amendment protects the right to carry in public; and resolve a square Circuit split on the constitutionality of justifiableneed restrictions on that right. I would grant the petition for a writ of certiorari."
In any event, we will know their fate within a little over two weeks.