Supreme Court Second Amendment Update 6-16-2024
With the notable exceptions of the six preliminary injunction cert petitions challenging Illinois’ ban on so-called assault rifle and large capacity magazine bans and the apparent hold of one case out of New York, Second Amendment cert petitions continue to be scheduled for the weekly private conference of the justices and continue to be denied the following Monday morning, which means the petitions were not even voted on in the weekly conference as to whether or not to grant them. The petitions were automatically denied.
The justices are holding nine Second Amendment cert petitions. In eight of them, the Federal government asked the Court to hold the petition pending the disposition of another case in which the Court will issue an opinion.
The ninth petition being held also asked SCOTUS to hold pending the opinion in the Rahimi case. The New York respondents took no position on whether or not to hold the petition. The case is Ivan Antonyuk, et al v. Steven G. James, et al. The two questions presented to the justices 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.
Given that SCOTUS has already denied multiple petitions, including this term, questioning whether “good moral character” requirements are constitutional, I think it is the first question that caught the eye of at least one of the justices. In her concurrence to NYSRPA v. Bruen, Justice Barrett criticized the Court for not clearly stating or delineating the relevant date or timeframe against which Second Amendment gun laws should be evaluated.
In addition to the six preliminary injunction appeals out of Illinois that were relisted for last Thursday’s conference, two Second Amendment cert petitions were scheduled for the conference. Statistically speaking, Second Amendment cert petitions are Dead On Arrival. Very, very few petitions survived their first conference, so feel free to be surprised if either or both of them are relisted for the next and final SCOTUS conference for this term before the justices go on their summer break which will be held on June 20th.
Nadine Gazzola, et al v. Kathleen Hochul, Governor of New York, et al The questions presented are: Did the Second Circuit err in the Winter analysis of Petitioners’ request for preliminary injunctive relief under Fed. R. Civ. P. 65, including (1.) when it adopted pre-Bruen scrutiny testing for Second Amendment claims effecting the core rights of individuals and of derivative claims on behalf of individuals; and/or (2.) when it failed to evaluate Petitioners’ likelihood of success in their novel theory of “to keep” from “to keep and bear arms” as having independent constitutional value to protect federally licensed dealers in firearms as measured by the standard of “constitutional regulatory overburden?” Bryan Christopher O'Rourke, Petitioner v. Oklahoma The questions presented is: Whether, pursuant to Padilla, counsel is a fortiori constitutionally deficient for failing to notify a United States citizen of the direct and/or collateral consequence of the permanent and categorical loss of a fundamental, individual, and enumerated right to bear arms under the Second Amendment? Whether the categorical loss of one’s Second Amendment rights after a misdemeanor domestic violence conviction is a direct or collateral consequence, and where advisement to a criminal defendant of the consequence lies? Or alternatively, whether Oklahoma law requires courts to advise criminal defendants ofall constitutional rights being surrendered by a guilty plea, including the loss of one’s Second Amendment rights? Whether Oklahoma’s Uniform Post-Conviction Procedure Act is an inadequate and ineffective independent state law ground to resolve this purely federal question? Two Second Amendment cert petitions have been distributed for the "long conference" of September 30th. The long conference is where the justices dispose of around 1,000 cert petitions that weren't in a position to be disposed of by the time the justices went on summer vacation and those petitions that accumulated over their summer break.
The respondents filed a waiver of their right to respond in both cases. A waiver plus no response requested by any of the justices equals "Petiton Denied." The two petitions are: Santos Argueta, et al., Petitioners v. Derrick S. Jaradi The questions presented are: 1. Whether the Fourth Amendment permits police to shoot a fleeing suspect who might be holding a gun but exhibits no other signs of dangerousness. 2. Whether the level and immediacy of the threat actually facing officers on the scene is a question of fact for jurors or a legal issue assigned to the court. Rawtavious Moore, Petitioner v. United States QUESTION PRESENTED Whether 18 U.S.C. § 922(g)(1) violates the Second Amendment under New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022)? There are currently seven other Second Amendment cert petitions still in the cert petition briefing stage. Barring something extraordiary, the petitions will be distributed to the long conference in September. The petitions are: Smith & Wesson Brands, Inc., et al., Petitioners v. Estados Unidos Mexicanos The questions presented are: 1. Whether the production and sale of firearms in the United States is the “proximate cause” of alleged injuries to the Mexican government stemming from violence committed by drug cartels in Mexico. 2. Whether the production and sale of firearms in the United States amounts to “aiding and abetting” illegal firearms trafficking because firearms companies allegedly know that some of their products are unlawfully trafficked. Response due July 3, 2024. Shawn Thomas Borne, Petitioner v. United States QUESTIONS PRESENTED 1. Whether 18 U.S.C. § 922(g)(1) is unconstitutional under the Second Amendment, both facially and as applied to Mr. Borne, in light of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). 2. Whether, as a statutory matter, 18 U.S.C. § 922(g)(1) prohibits a person’s present intrastate possession of a firearm or ammunition for the sole reason that the firearm or ammunition previously crossed state lines. 3. Whether Congress may criminalize intrastate possession of a firearm or ammunition solely because they crossed state lines at some point before they came into the defendant’s possession. Apr 19 2024 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. Response due May 23, 2024. May 16 2024 Motion to extend the time to file a response is granted and the time is extended to and including June 24, 2024. Jun 12 2024 Motion to extend the time to file a response is granted and the time is further extended to and including July 24, 2024. Maurice Farris, Petitioner v. United States QUESTION PRESENTED Whether Mr. Farris’s conviction under 18 U.S.C. § 922(g)(1) is unconstitutional under the Second Amendment in light of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). Response due June 17, 2024. Jun 03 2024 Motion to extend the time to file a response is granted and the time is extended to and including July 17, 2024. Christopher L. Wilson, Petitioner v. Hawaii The question presented is: Whether the Bruen test determines when a State's criminal prosecution for carrying a handgun without a license violates the Second Amendment? Response due June 20, 2024. Jun 03 2024 Motion to extend the time to file a response is granted and the time is extended to and including July 17, 2024. Tayron Deshawn Thomas, Petitioner v. United States QUESTIONS PRESENTED Whether 18 U.S.C. §922(g) permits conviction for the possession of any firearm that has ever crossed state lines at any time in the indefinite past, and, if so, if it is facially unconstitutional? Whether 18 U.S.C. §922(g)(1) comports with the Second Amendment? Subsidiary Question: Whether this Court should hold the instant Petition pending United States v. Rahimi, 22-915, __U.S.__, 2023 WL 4278450 (June 30, 2023)(granting cert.), given the government’s concession in Garland v. Range, No. 23-374, that Rahimi presents “closely related Second Amendment issues” with respect to constitutional challenges to 18 U.S.C. §922(g)(1), and justifies a decision to “hold the petition for a writ of certiorari” in Range “pending its decision Rahimi”, Government’s Petition for Certiorari in Garland v. Range, 23-374... Jun 03 2024 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due July 8, 2024). Felix Olivas, Petitioner v. United States QUESTION PRESENTED FOR REVIEW 1. Whether 18 U.S.C. § 922(g)(1), which criminalizes possession of a firearm by a convicted felon, exceeds Congress’s power under the Commerce Clause. 2. Whether 18 U.S.C. § 922(g)(1) violates the Second Amendment. Jun 03 2024 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due July 8, 2024). James Edward Young, Petitioner v. United States QUESTIONS PRESENTED I. Mr. Young pleaded guilty to violating 18 U.S.C. § 922(g)(1), which criminalizes the possession of a firearm by anyone previously convicted for a felony offense. He then attacked the statute of conviction as unconstitutional on appeal. Applying the plain-error standard of review, the Fifth Circuit declared the error alleged to be insufficiently clear. To support the point, it noted a circuit split on the question of § 922(g)(1)’s constitutionality. That split turns on whether § 922(g)(1) is sufficiently similar to Founding Era surety laws and other laws aimed at disarming groups perceived to be dangerous. Those same arguments are now before the Court in United States v. Rahimi, No. 22-915. The question presented is: Whether a ruling in Mr. Rahimi’s favor would affect the Fifth Circuit’s plain-error analysis concerning the constitutionality of § 922(g)(1). Jun 04 2024 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due July 8, 2024.
These are the eight petitions being held pending the decision in Rahimi or Erlinger.
Merrick B. Garland, Attorney General, et al., Petitioners v. Bryan David Range 18 U.S.C. 922(g)(1) - On hold likely for the opinion in U.S. v. Rahimi. The Feds asked SCOTUS to hold the case pending Rahimi. Nov 01 2023 DISTRIBUTED for Conference of 11/17/2023. United States, Petitioner v. Patrick Darnell Daniels, Jr. -18 U.S.C. 922(g)(3) - DISTRIBUTED for Conference of 1/5/2024. The Feds asked SCOTUS to hold the case pending Rahimi. Dec 06 2023 DISTRIBUTED for Conference of 1/5/2024. United States, Petitioner v. Litsson Antonio Perez-Gallan - 18 U.S.C. 922(g)(8) - DISTRIBUTED for Conference of 1/5/2024. The Feds asked SCOTUS to hold the case pending Rahimi. Dec 20 2023 DISTRIBUTED for Conference of 1/5/2024. Lakeith Lynn Washington, Petitioner v. United States - 18 U.S.C. § 922(g)(1) - DISTRIBUTED for Conference of 2/16/2024. The Feds asked SCOTUS to hold for Erlinger v. US, No. 23-370. Feb 01 2024 DISTRIBUTED for Conference of 2/16/2024. Edell Jackson, Petitioner v. United States - 18 U.S.C. § 922(g)(1) - DISTRIBUTED for Conference of 3/15/2024. The Feds asked SCOTUS to hold the case pending Rahimi. Feb 22 2024 DISTRIBUTED for Conference of 3/15/2024. Melynda Vincent, Petitioner v. Merrick B. Garland, Attorney General QUESTION PRESENTED Whether the Second Amendment allows the federal government to permanently disarm Petitioner Melynda Vincent, who has one 15-year-old nonviolent felony conviction for trying to pass a bad check. 18 U.S.C. § 922(g)(1) - DISTRIBUTED for Conference of 3/28/2024. The Feds asked SCOTUS to hold the case pending Rahimi. Survived first conference of 3/28/2024. Sylvester Cunningham v. United States QUESTION PRESENTED Whether, as the Eighth Circuit held, 18 U.S.C. § 922(g)(1) (which prohibits any felon from possessing firearms) is invariably constitutional as applied to any defendant, no matter the case-specific circumstances? 18 U.S.C. § 922(g)(1) - Response due March 29, 2024. Mar 29 2024. Brief of respondent United States filed. Feds asked to hold for Rahimi. DISTRIBUTED for Conference of 5/9/2024. Survived its first conference. Reginald Creshawn Doss v. United States QUESTION PRESENTED Whether, as the Eighth Circuit held, 18 U.S.C. § 922(g)(1) (which prohibits any felon from possessing firearms) is invariably constitutional both facially and as applied to any defendant, no matter the case-specific circumstances? Response due April 29, 2024. Apr 29 2024 Brief of respondent United States filed. Feds asked to hold for Rahimi. May 15 2024 DISTRIBUTED for Conference of 5/30/2024. Survived its first conference.
Unless the justices delay taking their summer break, petitions filed on or after July 1st will be marked as 2024 term petitions. The 2024 term will begin on the first Monday in October, and the first oral arguments will take place on Monday, October 7th. The first conference in which petitions will be voted on will be October 11, 2024.
The 14th year of my lawsuit challenging California’s ban on openly carrying loaded and unloaded rifles, shotguns, and handguns outside of the home for the purpose of self-defense begins at the end of the following month, November 30th—Charles Nichols v. Gavin Newsom, et al.