Supreme Court Second Amendment Update 4-30-2024
7 more SCOTUS Conferences until current term ends in June
Update: All seven of the “assault” rifle and magazine ban cert petitions have been scheduled for the May 16th SCOTUS conference as was the Srour v. NYC et al application which seeks to lift the stay of an injunction imposed by the 2nd Circut Court of Appeals. The 2nd Circuit has scheduled oral argument for June 10th. The district court had permanently enjoined the “good moral character” requirement to possess a rifle or shotgun.
On Monday, April 22nd, SCOTUS granted the petition for a writ of certiorari in Merrick B. Garland, Attorney General, et al. v. Jennifer VanDerStok, et al.
The usual suspects, including self-described Second Amendment lawyers, trumpeted how wonderful it is that SCOTUS has granted a Second Amendment cert petition.
First of all, VanDerStok is not a Second Amendment case. It does not present a Second Amendment question, and it will not be decided on Second Amendment grounds. Secondly, the Federal government lost. Although it is no surprise that SCOTUS granted a cert petition in which the Federal government lost, now that SCOTUS has granted the petition there is a very real chance that the government will win when the case is argued and decided next term.
The Questions presented are: 1. Whether “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive,” 27 C.F.R. 478.11, is a “firearm” regulated by the Act. 2. Whether “a partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver,” 27 C.F.R. 478.12(c), is a “frame or receiver” regulated by the Act.
Like the Cargill bump stock case, this case will turn on statutory definitions, not the Second Amendment.
Meanwhile, actual Second Amendment cert petitions have continued to be filed since my last update on March 12th. They continue to be scheduled for SCOTUS conferences, and they continue to be denied.
Before I turn to the pending cert petitions, let us take a look at a pending application the so-called gun-rights groups aren’t going to tell you about because it is not one of their lawsuits.
Joseph Srour, Applicant v. City New York, New York, et al. EMERGENCY APPLICATION TO VACATE THE SECOND CIRCUIT'S STAY PENDING APPEAL "A district court of the Southern District of New York permanently enjoined a discretionary provision of the Rifle/Shotgun licensing scheme for New York City that requires non-prohibited individuals to prove to a government official that they possess ‘good moral character’ before they may lawfully possess rifles and shotguns for self-defense." "Respondents proceeded to move the Second Circuit for a stay pending appeal. Rather than allow the district court order to properly take effect, the Second Circuit continued its longstanding history of disregarding this Court’s Second Amendment jurisprudence, and stayed the permanent injunction of a patently unconstitutional firearm regulation." Apr 04 2024. Application (23A870) denied by Justice Sotomayor. April 10, 2024 Resubmitted to Justice Thomas. Apr 11 2024 Application (23A870) refiled and submitted to Justice Thomas.
Justice Sotomayor denied the Srour application nine days after it was submitted to her. Justice Thomas has had the application for eighteen days. It is still standing.
Perhaps the most important Second Amendment cert petition still standing is one of those very rare petitions where the Respondent waived his right to file a response but SCOTUS requested a response. The lion’s share of cert petitions are denied without a response being filed and without SCOTUS requesting a response. The case is:
Shawn Reeves v. New Jersey QUESTION PRESENTED Does prosecuting a person for possessing a firearm without a permit violate the Second and Fourteen Amendments when that person was unable to receive such a permit solely due to an unconstitutional requirement that he establish a heightened need for self-defense? Response Due April 8, 2024. Waiver filed 2-5. Response Requested. DISTRIBUTED for Conference of 3/15/2024. Response due May 8, 2024.
We should know the fate of the Reeves petition before this SCOTUS term ends at the end of June.
The ”assault” weapon and/or magazine ban cert petitions seem to be the ones that have garnered the most attention and so let’s take a quick look at them.
The first is a Rule 11 cert petition (petition before judgment) challenging Maryland’s “assault rifle” ban — Bianchi v. Brown. A Rule 11 cert petition can be filed at any time before there is a final judgment either by the district court or the court of appeals. In the Bianchi case, there is a final decision by the district court. The appeal had been argued before and submitted for a decision by a three-judge panel of the Fourth Circuit Court of Appeals which in turn sat on the case for over a year. Before the three-judge panel issued its opinion, the Fourth Circuit decided to hear the case before the full court (en banc).
Dominic Bianchi, et al., Petitioners v. Anthony G. Brown, in His Official Capacity as Attorney General of Maryland, et al. QUESTION PRESENTED Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with semiautomatic rifles that are in common use for lawful purposes. Petition for a writ of certiorari before judgment. Apr 12 2024. Brief in opposition submitted. Apr 25 2024 Reply filed.
Unfortunately, it takes the vote of five justices to grant a Rule 11 petition before judgment which is why this type of petition is rarely filed although statistically speaking, a higher percentage of Rule 11 petitions is granted than the typical Rule 10 petitions which are filed when SCOTUS is the last resort. My California Open Carry cert petition (Charles Nichols v. Gavin Newsom et al) was a Rule 11 petition. It was denied after 12 years of litigation and despite the 9th Circuit Court of Appeals having jurisdiction to decide my case three times, and despite the State of California having amended its gun-free school zone law prohibiting me and every other similarly situated person from transporting our handguns, unloaded and in a fully enclosed locked container outside of our homes because we reside (or work) within 1,000 feet of a K-12 public or private school and do not have parking on our property.
SCOTUS granted a cert petition when Justice Ginsburg was still on the Court in a case where New York City prohibited the transportation of unloaded handguns, in a fully enclosed locked container out of the city. During the oral argument, Justice Ginsburg questioned the attorney for NYC as to how “public safety” could possibly be a justification for the law. One might have thought that a law that prohibits the transportation of unloaded handguns outside of one’s home would have been enough on its own to warrant the vote of five justices. One would have been wrong to think it.
There are six other cert petitions out of Illinois challenging bans on “assault” weapons and/or magazine bans. These are all preliminary injunction appeals. SCOTUS can grant interlocutory appeals but very rarely does.
Although these interlocutory petitions require just the vote of four justices to grant, if the oral argument in the Cargill bump stock case taught us anything it taught us that the justices are woefully ignorant as to how firearms work. Five of the nine justices said that bump stocks (and machine guns) should be banned and I suspect at least a couple more leaned in favor of banning bump stocks even though the question before the Court was whether or not bump stocks met the statutory definition of a machine gun, and not whether or not they are arms protected by the Second Amendment.
Add to the justices’ ignorance of firearms the filing of seven cert petitions that involve firearms that look like machine guns and magazines which enable these firearms to file a “lot” of bullets then if the petitions are denied you should have fully expected it.
The only Second Amendment cert petition SCOTUS has granted since NYSRPA v. Bruen was granted on April 26, 2021, was US v. Rahimi. A case in which the Federal Government lost.
United States, Petitioner v. Zackey Rahimi QUESTION PRESENTED: Whether 18 U.S.C. 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.
The oral argument did not go well for Rahimi. It is likely that the Rahimi opinion will poke holes in the NYSRPA v. Bruen methodology the lower courts are supposed to be using when deciding Second Amendment challenges. In any event, the Feds asked the justices to hold five related cert petitions pending the decision in Rahimi. All five survived their first SCOTUS conference and have not been rescheduled.
There are currently eight cert petitions scheduled for the next SCOTUS conference on May 9th. A waiver was filed in all but one. In the lone case where the waiver was not filed, the Feds asked SCOTUS to hold the case pending its decision in Rahimi. SCOTUS doesn’t always hold a case when the Feds ask but it usually does.
As of this writing, there are ten additional cert petitions that have been filed for which we are waiting to see if a response will be filed.
Unless there is some case in which a Federal Court of Appeals or a State court of last resort enjoins a Federal law, we can expect SCOTUS to continue denying Second Amendment cert petitions.
If you would like links to all of these cert petitions then click on this link to SCOTUS Gun Watch at the Duke Center for Firearms Law. Yes, they are anti-gun but for months I have been sending them links, and for months they have been adding the links to their weekly updates.