A Second Amendment Case Ready for Cert?
Kent noted yesterday a split Ninth Circuit en banc decision that upholds Hawaii’s very strict gun control law. The percolating Second Amendment question out in the country is whether and under what conditions a law-abiding citizen can legally carry a gun for self-defense outside his home. The Hawaii case might very well prove to be grist for that mill, but there is another case in the pipeline that might get there first. My friend Prof. Josh Blackman has the story.
Writing in Reason magazine, Josh opines:
In 2008, the Supreme Court decided D.C. v. Heller. Since that date, President Obama served two terms, President Trump served one term, and President Biden has begun his first term. Five members of the Court left through resignation or death: Justice Souter, Stevens, Scalia, Kennedy, and Ginsburg. Only four members from that Court remain: Chief Justice Roberts, and Justices Thomas, Alito, and Breyer.
Over the past thirteen years, a lot has changed. Yet, one thing has remained constant: the Supreme Court has refused to provide any further explanation about the scope of the Second Amendment. We have seen radical shifts in many other areas of the law, but for guns, we are still stuck in 2008. During this time, the lower courts have brazenly resisted Heller at every step. Yet, at least as of June 2020, there were not enough votes to take a gun case.
Now, I presume, the votes are present. Paul Clement [a former Solicitor General] has gift wrapped a cert petition with a bow for the Justices to review. NYS Rifle & Pistol Association II would present a simple question: “Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.” Answering this question, yes or no, would settle so much ongoing litigation. The case will be distributed for the March 26, 2021 conference. Keeping with past practice, the Court generally relists a petition once before granting. Thus, on April 1, the Court will decide whether to take this case.
I am confident there are four votes to grant review. Justices Thomas, Alito, Gorsuch, and Kavanaugh were all eager to review the underlying issue in NYS Rifle & Pistol Association I last term. But that dispute was deemed moot. Clement’s current petition has no vehicle problems. He explains:
The circuits are deeply split, and no other circuit is likely to join the fray because the regional circuits that have not weighed in generally coincide with regions where state governments value and respect Second Amendment rights. Thus, the nation is split, with the Second Amendment alive and well in the vast middle of the nation, and those same rights disregarded near the coasts. Whatever else the framers intended in enshrining the Second Amendment in our charter of fundamental freedoms and guaranteeing rights to “keep and bear arms” to all “the people,” it was not to tolerate a nation divided on an issue this significant. This Court should grant plenary review.
However, if the Court declines to grant review, we can draw an unwelcome inference: there is uncertainty over how Justice Barrett will vote. I am skeptical of this outcome.
During her tenure as a circuit judge, Barrett wrote a thorough Second Amendment dissent. It was brilliant. Randy and I excerpted it for our casebook.
I will keep my eyes peeled for April 1, or perhaps April 5. If this petition is neither granted nor denied, we can presume that a dissent from denial is being prepared. And the Second Amendment will remain in limbo for the foreseeable future.
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I would say keep your eyes peeled for April 5, with only a very remote chance of April 1. Absent some special urgency, this late in the calendar all cert. grants are for next term, and there is no reason to announce the grant ahead of the standard Monday-after-conference order list.
More than one relist before granting is not unusual, so I would not infer a forthcoming denial from the absence of the case from the April 5 list.
Do you think any of the textualists on SCOTUS will ever question the “law abiding citizen” limitation on the Second Amendment that you suggest here, Bill (or Kent)? To my knowledge, there is no other part of Constitution discussing “the right of the people” that categorically and permanently excludes everyone who ever commits (any? serious? certain?) crime.
For those who view the language of the Constitution as subject to evolving and policy-based interpretation, I can fully understand how a “law abiding citizen” limitation could be invented for the Second Amendment. But I have never quite understood how this limit can be squared by the true textualist (unless maybe I am just foolish to think there are really any true textualist).
I presume you do not think broad federal law forever dispossessing all former felons at the pains of decades of imprisonment is unconstitutional, but I still struggle to see why that is so given the broad text of the Amendment and the eagerness by some to make it an individual right based in the right of self defense (which is not, of course, forever lost by a past crime).
“Do you think any of the textualists on SCOTUS will ever question the “law abiding citizen” limitation on the Second Amendment that you suggest here, Bill (or Kent)? ”
I doubt it. I believe that, at the time of the Founding, it was widely if not universally understood that having a conviction for a serious crime carried all manner of disabilities, including firearms. But I haven’t researched it, so it would be interesting to hear from any learned and unbiased source who has. (This is also the response I would make to your second paragraph).
“I presume you do not think broad federal law forever dispossessing all former felons at the pains of decades of imprisonment is unconstitutional…”
That would put me in good company, namely, all nine of the Justices in Heller — the five who supported relatively broad gun rights (but with the dictum that disturbs you), plus the four (the liberals, led by Stevens), who would not even have given law abiding citizens the gun rights the majority did.
“…but I still struggle to see why that is so given the broad text of the Amendment and the eagerness by some to make it an individual right based in the right of self defense (which is not, of course, forever lost by a past crime).”
I hesitate to ruin your day by agreeing with you, but I too have some trouble seeing why the right to bear arms, by whomever possessed, should be limited only to when the bearer has a need for self-defense. As long as a peaceable person wants to carry a gun just because it makes him feel better, I don’t think that’s any of my business. As we conservatives like to say, the gun is not the problem; the criminal using it is the problem.
It is always a good day, Bill, when you agree with me; the rough ones are when I agree with you. 😉 Jokes aside, I appreciate your responses. The fact that Judge Bybee wrote the majority opinion here, not to mention the recent emergence of a new SCOTUS “moderate Beltway block” (CJ Roberts and Kavanaugh), has me thinking a cert grant here is not quite a lock.
Supporting the 2A as an individual right (Heller) applied everywhere (McDonald) is controversial, but not all that challenging or especially time-consuming. “Interpreting” the 2A to resolve whether, e.g., it permits denying a carry permit to persons with medical marijuana cards or who trespassed at the Capitol or thousands of other subsidiary questions is quite challenging and time-consuming. Based on the failure of the Court to take up any 2A issue for over a decade, I suspect the Chief is quite disinclined to spend a lot of time as national gun regulation czar, but perhaps he will have no choice in the coming years.
“It is always a good day, Bill, when you agree with me; the rough ones are when I agree with you.”
That’s classic — I’m going to tuck it away for future use!
I think the chances of cert depend on whether the four most conservative (Thomas, Alito, Gorsuch and Barrett) think they would get either Roberts or Kavanaugh on the merits. I wouldn’t hazard a guess myself, since they know their colleagues better than I. I haven’t run into Roberts since we were at the same opera at the Kennedy Center maybe three years ago, and I haven’t talked to Kavanaugh since he was sitting one table over at the FedSoc National Convention a couple of years ago. But each is more conservative either than liberals like to imagine or that movement conservatives grumble about.
I agree that Roberts and Kavanaugh are plenty conservative. The issue is whether and how all the current conservatives on the Court want to become the national gun regulation cabal that decides which of many existing local, state and federal gun regulations must be overturned.
Justice Barrett in a notable dissent while on the Seventh Circuit said in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019), that “[a]bsent evidence that [non-violent felon] would pose a risk to the public safety if he possessed a gun, the governments cannot permanently deprive him of his right to keep and bear arms.” Disposing lower-level offenders and carry restrictions seem to be just a couple of the many intricate issues likely to divide conservatives if the Court starts treat the 2A as anything other than just a “second-class right.” I sense CJ Roberts has long understood this and thus has long been content to leave such issues only to the lower courts (which still pretty consistently rule against gun owners).
Doug —
I’ll go out on a limb of speculation here. I’ll predict that the Court will take one of the two cases we’ve been talking about, and decide on the merits that bearing a gun outside the home, by a law-abiding person for self defense, is protected by the Second Amendment. The vote will be 6-3. Alito will write the majority opinion, joined in full by Roberts and Kavanaugh. Barrett will concur but say she would go farther, in part along the line of her dissent in Kanter. She will be joined by Thomas and Gorsuch. The three liberals will dissent, along the lines of Stevens’ dissent in Heller, and saying that the majority will make “gun violence” (as they like to call it) just that much worse.
If cert is granted, as I think likely, I think Roberts is pretty much committed to going along with a pro-gun view on the merits, notwithstanding (as you note) his characteristic preference to stay out of too much detail in the Court’s involvement in this area.
Seems like a reasonable prediction, though I assume the court would preserve the Heller dicta allowing “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” In turn, we should expect liberal city governments will declare anyplace within 1000 feet of a school or a government building a “sensitive place” as a way to still be able to bar open or closed carry within city limits. Do you think the same six will be comfortable regulating what qualifies as a sensitive place and/or declaring that the Gun-Free School Zones Act of 1990 has long been in violation of the Second Amendment?