Attorney Ilya Shapiro of the Cato Institute had a series of tweets regarding the Supreme Court’s abdicating its duty to say what the law means with regard to the Second Amendment.
Shapiro is correct. The Supreme Court should be ashamed of itself.
You can also read his full blog post here.
In the face of numerous US District and Appeals Courts flat out ignoring its rulings in Heller and McDonald, the Supreme Court has obviously decided they preferred to be a doormat. In today’s Orders of the Court, virtually every single case dealing with the Second Amendment had certiorari denied. The only remaining case is Rodriguez v. San Jose which involves the confiscation of firearms from a non-prohibited person. (Last sentence is a correction from the original post)
With the exception of Rogers v. Grewal, a New Jersey carry case, all the other cases were denied certiorari without any comment or dissent. I don’t count the granting of permission to file an amicus brief and then denying cert as the Court did with Mance and Cheeseman as a comment.
The across the board denial of certiorari could mean a number of things. First, it could be a strategic move by Justices Thomas, Alito, Gorsuch, and Kavanaugh to not bring a case where they weren’t sure they had the vote of Chief Justice John Roberts. He seems more interested in his own legacy as it will be written by the Washington elite and liberal academia. The man has lost all semblance of a spine. You saw it with clarity in his decision in the ObamaCare case. Roberts either sees himself as the successor to Justice Kennedy’s man in the middle or has decided to go full-Souter.
Second, it could mean the more conservative justices are waiting until such time as Justice Ginsberg is off the Court in hopes that President Trump will appoint someone would vote to respect the Second Amendment. This, too, has risk as the presidential election appears to be a toss-up right now and Ginsberg keeps hanging on (and on and on) despite her health issues.
Third, a number of the justices find the Second Amendment “icky” and any attempt to go beyond Heller and McDonald is a bridge too far. Certainly the liberal four are in this camp and they are depending upon the lower courts to continue to emasculate those rulings. They consider the Second Amendment a second-class civil right.
Fourth, it means that the Roberts Court has no self-respect and doesn’t give a big rat’s ass if their rulings are roundly ignored by the lower courts. We all know that if it a lower court ignored a ruling on abortion or some other most favored “right”, the Court would have been all over it and swatted the lower court down like flies.
I will examine Justice Thomas’ dissent on the denial of certiorari in Rogers v Grewal in which Justice Kavanaugh joined in part in a subsequent blog post. There is a lot there. I do find it instructive that the only justice to actually face racial discrimination is the primary supporter on the Court of the Second Amendment.
The Supreme Court has their conference on Fridays to examine which cases they wish to take and the ones they don’t. They announce the results on Monday in the Orders of the Court. Not all pending cases are sent to conference but those that are can be denied certiorari (or mandamus), accepted, or passed on to another week’s conference.
The Orders of the Court released this morning indicate that they punted all the major Second Amendment cases to the next week. The exception was Bradley Beers v. Barr which dealt with the denial of Second Amendment rights to those who had been involuntarily committed no matter how long ago.
In that case, the Supreme Court granted certiorari, vacated the judgment, and sent it back to the 3rd Circuit to dismiss as moot.
The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Third Circuit with instructions to dismiss the case as moot. See United States v. Munsingwear, Inc., 340 U. S. 36 (1950).
Unfortunately, I don’t know enough about the Beers case to say why the Supreme Court said it was moot.
The Polite Society Podcast will have attorney Cody Wisniewski of the Mountain States Legal Foundation as our guest tonight. He will be discussing these potential cases and why he considered the finding of moot in NYSRPA v City of New York was not the end of the world for 2A cases. I will have a link up later where you can watch this on Facebook Live.
Cody was one of the attorneys who brought the case that forced New Mexico Gov. Michelle Lujan Grisham (D-NM) to reopen some gun stores in that state.
UPDATE: Thanks to Rob at 2A Updates I have an answer as to why the Beers case was considered moot. Mr. Beers has been cleared by the State of Pennsylvania, was granted a firearms license, and now has a legally owned firearm.
From the reply: https://t.co/inzcUSzf9o pic.twitter.com/JaEHxyBckl
— Rob (@2Aupdates) May 18, 2020
UPDATE II: The link to the Facebook Live broadcast of the Polite Society Podcast can be found here. It starts at approximately 7:05pm EDT tonight.
All 11 Second Amendment cases that are still pending before the Supreme Court have been redistributed for conference on Friday, May 15th.
Scroll through the embedded tweet to see all the cases.
Figuring out what the Supreme Court will do is like reading tea leaves. That said, I still think the SCOTUS will take one or more of these cases and hold the rest for remand based upon their final opinion.
The Supreme Court Order List released this morning denied certiorari to a number of cases. However, they did not deny nor grant certiorari to any of the 11 existing Second Amendment related cases that were sent for consideration at Friday’s conference.
This means that cases dealing with everything from interstate sales to carry to microstamping are still alive. I am keeping my fingers crossed that one or more of them will be granted certiorari. The dissents plus Kavanaugh’s concurrence in NYSRPA v. City of New York indicate at least four votes to hear Second Amendment cases. It only takes four votes but realistically you would need five or more to be assured of a pro-2A ruling.
The pro-democracy protests in Hong Kong should be instructive for everyone in this country. You have a territory that was once a colony of Britain and is now essentially a vassal state of Red China. The people there have never been entirely free. While freer as a British colony, they were still ruled by edicts from London. Now as part of China with the “one country, two systems” policy, they are still ruled from afar. What they want is what we take for granted in the US – human rights, freedom, and democracy.
These protesters understand something that all the Democrats running for president, much of the media, and even too many Republicans don’t. That is the real purpose of the Second Amendment.
 |
| Anthony Wallace/AFP/Getty Images |
They don’t plan to go duck hunting or deer hunting in Hong Kong. They fully understand the Second Amendment is what gives the people the power to change or overthrow a tyrannical government. While former presidential candidate Rep. Eric “Nuke’em” Swalwell is incredulous that people armed with mere small arms could take on a world power, one need only look to Afghanistan or to our former adversaries in Vietnam.
Modern technology gives the pro-democracy protesters a communication advantage that is hard to stop. They have found that Tinder can be used for more than hookups and that Poke’man Go isn’t just for my son-in-law to drive my daughter crazy.
Posting information about protests on Tinder is just one of several creative ways Hongkongers are using technology to mobilize people. For more than eight weeks now, technology has been at the center of organizing demonstrations against a controversial extradition bill.
People primarily communicated through Telegram groups and streamed their actions on gaming platform Twitch. As violence has escalated in recent weeks, though, police have been cracking down harder. So now protesters are resorting to more unorthodox methods of organizing and communicating online.
One of those methods, besides Tinder, is Pokémon Go.
When the Hong Kong police denied protesters permission to march in one of the city’s suburban neighborhoods on safety grounds, the protesters decided to say that they weren’t going for a march — they were just showing up for a game of Pokémon Go.
Rather than sneaking out messages like dissidents did using samizdat in the old Soviet Union, protesters are using Apple’s peer-to-peer AirDrop to pass on information to visitors from the rest of China. These visitors normally would only hear what the government allowed them to hear in China.
What makes AirDrop the ideal communication tool in this case is that it bypasses Chinese censors; news of protests in Hong Kong against the extradition bill have been blocked on popular social media platforms in China such as Weibo, WeChat and Baidu
I don’t know what will eventually happen in Hong Kong. Nonetheless, we in the United States should be paying attention. This is true especially now that you have media and technology giants controlling some much of what we see and hear. When you combine that with the statist nature of most politicians, right or left, it becomes an imperative that alternate voices are heard. You know like ones that ask the hard questions about the efficacy of background checks or red flag laws.
Colion Noir is now on his own again. He put up a YouTube video yesterday correctly asserting that the Second Amendment is bigger than identity politics. I agree with him and thinks he makes excellent points in this video.
However, I do want to know what is a Pina Colada gender. LOL!
Lincoln Memorial University’s Duncan School of Law held a Second Amendment Symposium on January 18th in Knoxville, Tennessee. I would have loved to attend this but I was leaving the next day for the SHOT Show. The symposium featured scholars who represented both the standard model and the collective rights model of the Second Amendment. Representing the standard model were Clayton Cramer, Stephen Halbrook, David Kopel, and Dave Hardy. The representatives of the collective rights model were Carl Bogus and Robert Spitzer.
Dave Hardy’s presentation has been published to YouTube. While the audio isn’t the best, it is still worth listening to if you are interested in the history of the Second Amendment and what the Founding Fathers intended when they added it to the Bill of Rights.
Dave writes of his presentation:
The theme is that Second Amendment had two independent purposes; one does not control the other. The militia phrase is indeed militia-centric, and the right to arms clause is focused on an individual right. James Madison and the First Congress were trying to satisfy two different constituencies, one of which wanted to protect the militia, the other of which wanted to guarantee an individual right to arms. They chose to appeal to both. This means that the individual right guaranteed is not one only for militia use; they were two separate ideas, and one is not a restriction on the other, anymore than the First Amendment’s guarantee of a right to religious exercise means that its freedom of the press only protects books on theology.
It will be interesting to read the papers that will come out of this symposium. I have an email in to the LMU Law Review asking when they will be published. I’ll update this when I get a response.
Does an illegal alien, unlawful alien, undocumented immigrant, or whatever your favorite term for those in this immigration class have the right to possess a firearm under the Second Amendment? Five circuit courts have said no and now the 9th Circuit Court of Appeals in an unanimous decision agrees in a decision released yesterday. They have all found that 18 U.S.C. § 922(g)(5)(A) is constitutional.
Some quick background on Victor Manuel Torres. He was born in Mexico and was brought to the San Jose, California area when he was four years old in 1989. Neither of his parents had legal immigration status. Notwithstanding that, he was enrolled in the San Jose school system until he was expelled in 2000 for gang membership in the Sur Santos Pride gang. A couple of years later he was sent to live with relatives in Mexico to get his act together. In 2005, he made three attempts to illegally enter the United States. The first two times he was caught and allowed to voluntarily return to Mexico. His third attempt was successful and he returned to live in the San Jose area. He married a US citizen in 2012 but made no attempt to apply for legal status. So you have a person who is in the United States unlawfully, did not have a right to legal status due to his parents, and who made no effort to change his status after his marriage to a US citizen.
In 2014, Torres was arrested when attempting to sell a stolen bicycle by the Los Gatos Police Department. When he consented to allow officers to look in his backpack for identification, they found a loaded .22 revolver, bolt cutters, and two homemade suppressors. In addition to state criminal charges, Torres was indicted and convicted on one count of being an unlawful alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(A). He moved to dismiss this charge on the basis that the Second Amendment protections applied to him and that § 922(g)(5)(A) violated the Second Amendment. The District Court disagreed and after trial sentenced him to 27 months in prison with three years probation. He then appealed to the 9th Circuit.
The 9th Circuit used a two-step inquiry to see if § 922(g)(5)(A) was unconstitutional both facially and as applied to Torres. The inquiry sought to determine whether the law burdened the Second Amendment and then. if so, the proper level of scrutiny. Noting that the 4th, 5th, 7th, 8th, and 10th Circuits had dealt with this question they proceeded to examine those cases. The key issue was whether “the people” in the Second Amendment was meant to apply to those illegally in the United States.
The two cases that all six of the circuits used to determine “the people” were US v Verdugo-Urquidez (1990) and DC v Heller (2008). The first case said “the people” in the Bill of Rights were those in a class of persons who are a) part of a national community and b) who have developed a sufficient connection with this country to be considered part of it. Likewise, the Heller case emphasized the Second Amendment as “protecting the rights of citizens” and “belonging to all Americans”. It went on to use the terms “law-abiding” and “responsible” in reference a citizen’s right to use arms in defense of their home. The five other circuits had all agreed that § 922(g)(5)(A) was constitutional but disagreed on the reasoning.
The 4th, 5th, and 8th Circuits found that unlawful aliens (the preferred term of the 9th Circuit) were not members of the law-abiding community per Heller and thus not entitled to be “the people” under the Second Amendment. Conversely, the 7th and 10th agreed that Heller was not conclusive on who should be considered “the people” as that was only secondary to whether it was an individual or collective right. They thus relied upon Verdugo-Urquidez to determine that those in question were “the people” or assumed to be. However, under intermediate scrutiny their exclusion from Second Amendment rights was allowed because it did not severely burden that right.
The 9th Circuit decided that:
However, we agree with the Tenth Circuit’s approach,
because we believe the state of the law precludes us from
reaching a definite answer on whether unlawful aliens are
included in the scope of the Second Amendment right. The
Tenth Circuit correctly held that this question is “large and
complicated.” Id. at 1169. Therefore, on this record, we find
it imprudent to examine whether Torres (as an unlawful alien)
falls within the scope of the Second Amendment right. As
such, we assume (without deciding) that unlawful aliens, such
as Torres, fall within the scope of the Second Amendment
right as articulated under Heller and Vergudo-Urquidez and
proceed to the appropriate scrutiny we should give to
§ 922(g)(5).
The court then had to decide whether § 922(g)(5)(A) imposed a permissible restriction on Torres’ Second Amendment right and what was proper level of scrutiny. Torres argued for strict scrutiny but the court disagreed.
However, intermediate scrutiny is
appropriate “if a challenged law does not implicate a core
Second Amendment right, or does not place a substantial
burden on the Second Amendment right.” Jackson, 746 F.3d
at 961. Although not dispositive of the question, we note that
there has been “near unanimity in the post-Heller case law
that, when considering regulations that fall within the scope
of the Second Amendment, intermediate scrutiny is
appropriate.” Silvester, 843 F.3d at 823.
Here I might say that the “near unanimity” is due more to resistance by the lower courts to Heller and McDonald than to true constitutional jurisprudence. The court goes on to decide that the severity of the law’s burden on Torres’ right is tempered. That is due to the fact that the prohibition on an unlawful alien’s possession of a firearm does not continue once he or she has left the United States. Moreover, if an unlawful alien was to acquire lawful immigration status the prohibition in § 922(g)(5)(A) would be removed.
The court agreed with the government’s contention that § 922(g)(5)(A) had an important governmental objective and that it was a reasonable fit between the objective and the conduct regulated. The primary objective is crime control and public safety. Armed unlawful aliens are a threat to immigration officers, they purposefully seek to avoid detection by often adopting false identities or staying outside the formal system of identification, and have already shown a willingness to disobey the United States’ law on immigration.
They conclude:
The present state of the law leaves us unable to conclude
with certainty whether aliens unlawfully present in the United
States are part of “the people” to whom Second Amendment
protections extend. Nonetheless, assuming that unlawful
aliens do hold some degree of Second Amendment rights, those rights are not unlimited, and the restriction in
§ 922(g)(5) is a valid exercise of Congress’s authority.
They thus affirm the lower court’s ruling that § 922(g)(5)(A) is constitutional.
The opinion was written by Circuit Judge N. Randy Smith. He was joined in the opinion by Chief Judge Sidney Thomas and US District Judge Sharon Gleason who was sitting by designation.
The full text of the opinion is here.
Mance et al v. Holder et al was a case brought in Texas that sought to overturn the Gun Control Act of 1968’s ban on the sale and immediate transfer by FFLs of handguns to out of state purchasers. It was a win at the District Court level when Judge Reed O’Connor of the Northern District of Texas ruled that part of the Gun Control Act unconstitutional.
Unfortunately, the government appealed their loss to the 5th Circuit Court of Appeals and won in January. The plaintiffs including the Citizens Committee for the Right to Keep and Bear Arms appealed and sought an en banc review. This was turned down in an 8-7 vote that was released on Friday.
What is most notable about this loss are the dissents from this decision. They make it abundantly clear that there are still some appellate level judges who value the Second Amendment.
Judge Jennifer Walker Elrod, a George W. Bush appointee, had this to say in part:
Simply put, unless the Supreme Court
instructs us otherwise, we should apply a test rooted in the Second
Amendment’s text and history—as required under Heller and McDonald—
rather than a balancing test like strict or intermediate scrutiny.
Judge Elrod then ends her dissent with a quote from Judge Brett Kavanaugh’s dissent in the Heller II case.
Following Judge Elrod’s dissent is one from Judge Don Willett that is, in my opinion, absolutely wonderful. I won’t quote the whole thing but I feel like it.
Constitutional scholars have dubbed the Second Amendment “the
Rodney Dangerfield of the Bill of Rights.” As Judge Ho relates, it is spurned
as peripheral, despite being just as fundamental as the First Amendment. It is
snubbed as anachronistic, despite being just as enduring as the Fourth
Amendment. It is scorned as fringe, despite being just as enumerated as the
other Bill of Rights guarantees.
The Second Amendment is neither second class, nor second rate, nor
second tier. The “right of the people to keep and bear Arms” has no need of
penumbras or emanations. It’s right there, 27 words enshrined for 227 years.
The core issue in this case is undeniably weighty: Does the federal
criminalization of interstate handgun sales offend We the People’s “inherent
right of self-defense?” This merits question turns upon a method question:
What level of judicial scrutiny applies to laws burdening the Second
Amendment? In other words, when the government abridges your individual
gun-ownership rights, how generous is the constitutional strike zone?
Judge Willett goes on to note that this case deals with a matter of exceptional importance and that it adds a significant methodological component in how Second Amendment cases should be decided – tiers of scrutiny vs. “text, history, and tradition”.
Finally, Judge James Ho takes issue with what he calls a prophylactic ban saying it is not narrowly tailored to a compelling government interest. He also states that he would have voted to affirm the District Court’s judgement. His dissent may also be one of the first times the word “hoplophobia” was used in a decision.
No one disputes that the Government has a compelling interest in
preventing dangerous individuals from purchasing handguns. But as the
district court held, and the panel properly assumed, handgun restrictions must
be narrowly tailored to serve that interest. Law-abiding Americans should not
be conflated with dangerous criminals. Constitutional rights must not give
way to hoplophobia.The ban on interstate handgun sales fails strict scrutiny. After all, a
categorical ban is precisely the opposite of a narrowly tailored regulation. It
applies to all citizens, not just dangerous persons. Instead of requiring citizens
to comply with state law, it forbids them from even trying. Nor has the
Government demonstrated why it needs a categorical ban to ensure compliance
with state handgun laws. Put simply, the way to require compliance with state
handgun laws is to require compliance with state handgun laws.
The Government’s defense of the federal ban—that state handgun laws
are too complex to obey—is not just wrong under established precedent, it is
troubling for a more fundamental reason. If handgun laws are too complex for
law-abiding citizens to follow, the answer is not to impose even more restrictive
rules on the American people. The answer is to make the laws easier for all to
understand and follow. The Government’s proposed prophylaxis—to protect
against the violations of the few, we must burden the constitutional rights of
the many—turns the Second Amendment on its head. Our Founders crafted a
Constitution to promote the liberty of the individual, not the convenience of
the Government.
I would love to see this case come before the Supreme Court with a Justice Kavanaugh on it. I doubt he would need to recuse himself just because his own words were quoted in the dissents.
by