SCOTUS Grants Stay On VanDerStok

By a 5-4 vote, the Supreme Court extended the stay on the Northern District of Texas’ injunction on the BATFE’s frames or receivers rule. The stay had been requested by the Solicitor General in an emergency request to the Supreme Court. The stay keeps the rule in place. It will be lifted only when the 5th Circuit makes a final disposition of the case or if certiorari is denied assuming an appeal to the SCOTUS.

The four justices who would have lifted the stay are Justices Alito, Gorsuch, Kavanaugh, and Thomas. Justice Barrettt, unfortunately sided with the liberals on the Court as did the Chief Justice.

The order from the Court is below:

080823zr_dc8f-1

VanDerStok was a big win and one hopes that it will continue to be a win.

Note: Blogging may be slow this week as we are visiting relatives.

ATF Gets Stay On VanDerStok Injunction (Update)

The Bureau of Alcohol, Tobacco, Firearms, and Explosives was successful in getting an administrative stay in VanDerStok v. Garland from the Supreme Court. Judge Reed O’Connor had granted a nationwide injunction against the implementation of the ATF’s frame or receiver rule. He had determined it was in “excess of their statutory jurisdiction”.

As might be expected, ATF and the Department of Justice appealed to the 5th Circuit Court of Appeals which refused to grant a stay of Judge O’Connor’s order. The 5th Circuit said the ATF had not “demonstrated a strong likelihood of success on the merits, nor irreparable harm in the absence of a stay.” The 5th Circuit still will be hearing ATF’s appeal of Judge O’Connor’s final order.

Yesterday, the ATF and DOJ filed an emergency appeal to the Supreme Court to receive a stay while the case is under appeal. This would mean the Final Rule would still remain in effect while it was being appealed.

Today, Justice Alito granted an administrative stay until August 4th at 5pm.

UPON CONSIDERATION of the application of counsel for the applicants,


IT IS ORDERED that the June 30, 2023 order and July 5, 2023 final judgment of the United States District Court for the Northern District of Texas, case No. 4:22-cv-691, are hereby administratively stayed until 5 p.m. (EDT) on Friday, August 4, 2023. It is further ordered that any response to the application be filed on or before Wednesday, August 2, 2023, by 5 p.m. (EDT)

Well, crap!

I am sure the attorneys for the Firearms Policy Coalition as well as DOJ are working hard to craft their responses as I write.

UPDATE: Attorney and law professor Mark Smith of The Four Boxes Diner has an explanation of what happened yesterday. The administrative stay was requested by the Solicitor General and the SCOTUS usually grants these without question. Bottom line is that we shouldn’t panic.

Disappointing

The US Supreme Court declined to issue an injunction against the new Illinois AWB and magazine ban while the cases make their way through the courts.

NAT. ASSN. FOR GUN RIGHTS, ET AL. V. NAPERVILLE, IL., ET AL.
The application for a writ of injunction pending appeal
presented to Justice Barrett and by her referred to the Court is
denied.

While Judge Stephen McGlynn of the Southern District of Illinois had issued a preliminary injunction, the state of Illinois immediately appealed to the 7th Circuit Court of Appeals asking for a stay of his injunction. Normally, the judge who had issued the injunction is given the opportunity to study whether a stay is warranted when the losing party appeals. This was not done in this case as noted by attorneys for the plaintiffs in their responses opposing the motion to stay. Unfortunately, Judge Frank Easterbrook of the 7th Circuit did grant their stay meaning the law remains in effect. His order was then confirmed by a panel of three judges (including himself) from the 7th Circuit.

In the NAGR case filed in the Northern District of Illinois, Judge Virginia Kendall had denied their request for a preliminary motion and their request for a motion to stay while they appealed. Attorneys for NAGR had appealed and the plaintiffs in the other cases from the Southern District had filed amicus briefs in support of their appeal.

I am thinking that the Supreme Court did not want to intervene until such time as decisions were final in the lower courts and the cases had been fully briefed and argued. In the meantime, the plaintiffs in the cases from the Southern District where an injunction had been issued could request an en banc hearing of the stay. According to the Washington Post, hearings are scheduled for next month on these cases.

Carry Case Oral Arguments Today

The oral arguments in NYSRPA v Bruen will start this morning at 10am Eastern. If you can set aside 70 minutes of your morning, I think it will be well worth it. Remember this is the first major Second Amendment case that the SCOTUS has taken since McDonald v. Chicago in 2010.

I suggest having a nice relaxing place to listen as undoubtedly the attorneys for the State of New York as well as the Biden DOJ will make arguments that we peons don’t have any right to carry outside the home.

Here is what my view will be like.

If you go to www.supremecourt.gov and scroll down to the bottom of the landing page, you will see a button marked “live” that allows you to follow along in real time as the audio is livestreamed. You can also follow along at C-Span here.

Paul Clement, former US Solicitor General, will argue the case for the New York State Rifle and Pistol Association. He will have 35 minutes. Opposing him will be Barbara Underwood, the Solicitor General of NY, who will have 20 minutes to defend New York’s good cause requirement. Another 15 minutes is set aside for Brian Fletcher, Principal Deputy Solicitor General, who will argue in favor of keeping New York’s requirement. A few votes here, a few votes there, and it would the US would be arguing in favor of the NYSRPA.

In the past, I would not have added this link to TTAG for post-argument analysis. However, Robert Farago is long gone and they do have an all-star cast. It will feature Joseph Greenlee of the Firearms Policy Coalition, David Kopel of the Independence Institute, Eugene Volokh of UCLA, and Cody Wisniewski of the Mountain States Legal Foundation’s Center to Keep and Bear Arms.

It is important to bear in mind that we probably won’t see a decision until just before this October Term closes in late June 2022. Also, a win won’t change things immediately in places like New Jersey, Hawaii, and the like as it will take more litigation. However, a win would provide the basis for challenging those states’ restrictive carry laws.

SCOTUS Accepts Carry Case

In Orders of the Court released this morning, the Supreme Court granted certiorari in NY State Rifle and Pistol Association v. Corlett et al. This is a case that challenges New York’s requirement to show cause for issuance of a carry permit.

20-843 NEW YORK STATE RIFLE, ET AL. V. CORLETT, KEITH M., ET AL.


The petition for a writ of certiorari is granted limited to
the following question: Whether the State’s denial of
petitioners’ applications for concealed-carry licenses for
self-defense violated the Second Amendment.

From the Washington Post:

The court will hear the challenge to a century-old New York gun control law in the term that begins in October. It is considering a law that requires those who seek a permit to carry a concealed weapon show a special need for self-defense. It is similar to laws in Maryland, Massachusetts and elsewhere that the court in the past has declined to review.

The individual plaintiffs in the case – Robert Nash and Brandon Koch – have permits to carry outside the home for hunting and target practice purposes. However, they were turned down when they requested carry permits for self-defense.

It takes four justices to agree to take a case. Last year, the court turned down a number of Second Amendment cases. The operating consensus was that the conservatives on the court were unsure of where Chief Justice John Roberts would come down. Now, however, with the addition of Justice Amy Coney Barrett, that has changed and there are five potentially reliable Second Amendment votes.

Assuming that the court agrees that there carry outside the home for self-defense is a key component of the Second Amendment, Chief Justice Roberts will have a hard decision. If he goes along with the majority, he gets to assign the opinion or reserve it for himself. If he is in the minority, then the assignment choice goes to the longest serving Associate Justice in the majority. In this case that would be Justice Clarence Thomas who has telegraphed many times his frustration with the court’s refusal to treat the Second Amendment as any thing other than a second-class right. Part of me hopes that Roberts is in the minority because that means a stronger decision in favor of the Second Amendment.

Justice Amy Coney Barrett

After my weekend in Tucson, I was looking for some good news. Thanks to Cocaine Mitch and the GOP majority in the Senate (minus RINO Susan Collins), I got it this evening.

Congratulations to Justice Amy Coney Barrett. I hope she has a long and distinguished career on the Supreme Court.

Also, congratulations are due to Justice Clarence Thomas who got the privilege of swearing in one of his own clerks as newest justice on the Supreme Court. I am sure he is one proud mentor.

Trump’s Short, Short SCOTUS List

Back when President Trump was planning to fill the seat of Justice Anthony Kennedy, I published short bios of all the people on his short list. He has since added to that list and it becomes important again as he plans to replace the late Justice Ginsburg with another woman.

I had planned to do a post on the five women that were on the “short, short” list. However, news broke this evening that the pick will be Judge Amy Coney Barrett.

Amy Coney Barrett

Personal:
48 y.o., married to Jesse Barrett, an AUSA for Northern Indiana, 7 children. Roman Catholic. 

Current Position:Judge, 7th Circuit Court of Appeals, appointed by Pres. Donald Trump, confirmed Oct. 31, 2017 

Education:
Rhodes College, BA, 1994
Univ. of Notre Dame Law School, JD summa cum laude, law review, 1997 

Clerkships:
Judge Laurence Silberman, US Court of Appeals for the DC Circuit, 1997-1998
Justice Antonin Scalia, Supreme Court of the United States, 1998-1999 

Previous Positions:Associate, Miller, Cassidy, Larroca & Lewin, Washington, DC., 1999-2001
Adjunct Prof., George Washington University Law School, 2001-2002
John M. Olin Fellow in Law, 2001-2002
Prof. of Law, University of Notre Dame Law School, 2002-2017
Visiting Prof. of Law, University of Virgina Law School, 2007

Scholarship:
Congressional Insiders and Outsiders, U.Chi. L. Rev. (forthcoming 2017).
Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921 (2017).
Congressional Originalism, 19 U. Penn. J. of Const. L. 1 (2017) (with John Copeland Nagle)
Countering the Majoritarian Difficulty, 31 Const. Comm. 61 (2017).
Statutory Interpretation in The Encyclopedia of American Governance (2016).
Federal Court Jurisdiction in The Encyclopedia of American Governance (2016).
Substantive Canons and Faithful Agency, 90 B.U. L. REV. 109 (2010).
Federal Jurisdiction in Encyclopedia of the Supreme Court of the United States.
Introduction: Stare Decisis and Nonjudicial Actors, 83 Notre Dame Law Review 1147 (2008).
Procedural Common Law, 94 Virginia L. Rev. 813-88 (2008).
The Supervisory Power of the Supreme Court, 103 Colum. L. Rev. 324 (2006).
Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev. 317 (2005).
Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003).
Catholic Judges in Capital Cases, 81 Marquette L.Rev. 303 (1998) (with John H. Garvey) 

Judicial Opinions: In the short time Judge Barrett has been on the 7th Circuit Court of Appeals (written in 2018), she has authored eight majority opinions and one dissent. None of these had to do with issues surrounding either the First or Second Amendments. 

Opposition:Judge Barrett, a practicing Roman Catholic and mother of seven, is loved by evangelicals and hated by the Left. The former hopes she’ll vote to overturn Roe v. Wade and the latter expect her to do that and thus find her objectionable. According to the left-wing Alliance for Justice, she decried Roe due to the Supreme Court “creat[ed] through judicial fiat a framework of abortion on
demand.” “

Some updates from my original post on Judge Barrett in 2018. Since she has been on the 7th Circuit, she actually had participated in a Second Amendment case. The case was Kanter v. Barr and Judge Barrett dissented.

From the SCOTUS Blog:

In a story in the National Review in August 2020, conservative legal activist Carrie Severino described Barrett as a “champion of originalism” during her short tenure so far on the 7th Circuit. In the 2019 case Kanter v. Barr, the court of appeals upheld the mail fraud conviction of the owner of an orthopedic footwear company. He argued that federal and state laws that prohibit people convicted of felonies from having guns violate his Second Amendment right to bear arms. The majority rejected that argument. It explained that the government had shown that the laws are related to the government’s important goal of keeping guns away from people convicted of serious crimes.

Barrett dissented. At the time of the country’s founding, she said, legislatures took away the gun rights of people who were believed to be dangerous. But the laws at the heart of Kanter’s case are too broad, she argued, because they ban people like Kanter from having a gun without any evidence that they pose a risk. Barrett stressed that the Second Amendment “confers an individual right, intimately connected with the natural right of self-defense and not limited to civic participation.”

From Damon Root at Reason.com about Barrett’s dissent in this case:

The categorical ban on gun possession by people with felony records is therefore “wildly overinclusive,” Barrett noted, quoting UCLA law professor Adam Winkler. “It includes everything from Kanter’s offense, mail fraud, to selling pigs without a license in Massachusetts, redeeming large quantities of out-of-state bottle deposits in Michigan, and countless other state and federal offenses,” she wrote. The ban is also underinclusive, she added, since people may reasonably be deemed dangerous even when they have not been convicted of a felony—for example, when they commit certain violent misdemeanors (another disqualification under federal law).

Given the poor fit between the ban’s scope and its ostensible purpose, Barrett said, it is not “substantially related to an important government interest”—the test under the “intermediate scrutiny” that the majority said it was applying in this case. “Neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe,” she wrote. “Nor have they otherwise demonstrated that Kanter himself shows a proclivity for violence. Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment.”

Barrett closed with a warning that will alarm gun control advocates but reassure people dismayed by the failure of federal courts to follow up on Heller and the Supreme Court’s 2010 decision in McDonald v. City of Chicago (which made it clear that the Second Amendment applies to state and local governments) by taking the right to arms as seriously as other constitutionally protected rights. “While both Wisconsin and the United States have an unquestionably strong interest in protecting the public from gun violence, they have failed to show, by either logic or data, that disarming Kanter substantially advances that interest,” she wrote. “On this record, holding that the ban is constitutional as applied to Kanter does not ‘put[] the government through its paces,’ but instead treats the Second Amendment as a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.'”

All I can say here is that if Judge Barrett had been Justice Barrett at the beginning of the year, we would not have seen the Supreme Court deny certiorari in the multitude of Second Amendment cases before it. Chief Justice John Roberts and his potential negative vote would have been mooted.

Groups, both liberal and conservative, have quickly sent out releases both anti-Barrett and pro-Barrett.

From Aimee Allison of “She The People” which is a San Francisco-based “national network connecting women of color to transform our democracy.”:

“Today’s news is devastating. Judge Amy Coney Barrett in no way fills the immense void Justice Ruth Bader Ginsburg left on our highest court. She is favored among Trump-loyal conservatives, and her judicial record makes it clear she would be solidly opposed to abortion rights and inclined, even eager, to reverse Roe v. Wade, and the Affordable Care Act.

“If confirmed, right-wing judicial activist Barrett would reshape the law and society for generations to come. She is a detriment to our democracy.

Conversely, the Club for Growth is quite pleased.

Club for Growth President David McIntosh praised President Trump’s nomination of Judge Amy Coney Barrett to the U.S. Supreme Court to fill the vacancy left by Justice Ruth Bader Ginsburg’s death. 
 
“In the coming years, the Supreme Court will decide many critical cases on issues that will shape America’s economy. Either the Supreme Court will let the free-market operate without excessive government interference, or it will give the administrative state power it should never have. Judge Amy Coney Barrett is an excellent selection who has shown a rock-solid commitment to originalism and the Constitution.” McIntosh said. 
 
“Yet again, President Trump has nominated an extraordinary judge to the Supreme Court. This choice will shape America’s future, as the Court considers cases relating to issues like the constant unconstitutional growth of government and whether federal agencies should have free reign to enact arbitrary rules without Congressional approval. Judge Barrett is a principled originalist, and we have every confidence that she will rule appropriately on these vital issues. We urge the U.S. Senate to move quickly to confirm Judge Barrett.” 

It is going to be a war but a war I think we will win.

One last tidbit that I gleaned this evening from a little research. Judge Barrett and former NRA-ILA Director Chris Cox are both graduates of Rhodes College. I wondered if their times there overlapped and they did. Barrett was a 1994 graduate and Cox was a 1992 graduate. If Rhodes was anything like my alma mater Guilford, they may have had some classes together and most certainly would have seen one another on campus as both are small, liberal arts colleges.

President Trump Adds 20 To Supreme Court List

President Donald Trump announced 20 new people to his list of potential Supreme Court nominees. These 20 join the existing list of potential nominees. He also challenged former VP Joe Biden to release his list.

The list is a mix of sitting Federal judges, three US Senators, an ambassador, a state attorney general, a state supreme court justice, two former Solicitors General, and a couple of attorneys in the White House.

The list in the order that I wrote them down with hopefully few misspellings.

  • Sen. Ted Cruz (R-TX)
  • Sen. Tom Cotton (R-AR)
  • Sen. Josh Hawley (R-MO)
  • Kentucky AG Daniel Cameron
  • Paul Clement, former Solicitor General
  • Noel Francisco, former Solicitor General
  • Judge Allison Jones Rushing, 4th Circuit, NC
  • Judge Bridget Bade, 9th Circuit, AZ
  • Judge Stuart Kyle Duncan, 5th Circuit, LA
  • Stephen Engle, Trump Administration
  • Judge James Ho, 5th Circuit, TX
  • Judge Gregory Katsas, DC Circuit,
  • Judge Barbara Lagoa, 11th Circuit, FL
  • Amb. Christopher Landau, US Amb to Mexico, MD
  • Justice Carlos Muniz, Florida Supreme Court
  • Judge Martha Picold, N. Dis. of IL
  • Judge Peter Phipps, 3rd Circuit, PA
  • Judge Sarah Pitlyk, E. Dis. of MO
  • Kate Todd, Trump Administration
  • Judge Lawrence VanDyke, 9th Circuit, NV

I will be providing short vignettes about each potential nominee in the days ahead as I did earlier for the original list. There are several really good picks on the list in terms of the Second Amendment. I don’t think you’d have the denial of cert if a Justice Cruz or a Justice Clement or a Justice Ho were added to the Court.

You can see the announcement below. His reading of the names starts at approximately 4:15.

Alan Gottlieb On Denial Of Cert In 2A Cases

Alan Gottlieb of the Second Amendment Foundation issued a strongly worded statement today on the Supreme Court’s denial of certiorari in virtually every Second Amendment Case before it. The only case that touches on the Second Amendment remaining is Rodriguez v. San Jose. Given that property was taken by the police and not returned, you could easily make the argument that it was a takings case and not a 2A case.

“The Supreme Court’s refusal to take a Second Amendment Foundation case falls squarely at the feet of Chief Justice John Roberts.

“He owes every gun owner in the United States an explanation about why the high court declined to hear a number of important Second Amendment cases.

“Given the fact that the Supreme Court had a cafeteria-style menu of cases from which to choose, there is no excuse why the court at this time chose to ignore the need to rule on any of these cases, and send a message to lower courts that they can no longer thumb their noses at the Heller and McDonald Supreme Court decisions affirming the individual right to keep and bear arms.

“There is still one more case pending cert before the high court that was filed by the SAF. It is known as Rodriguez v. San Jose, a firearms confiscation case out of the State of California.”

Alan is 100% correct. This needs to be laid at the feet of John Roberts. One does wonder what sort of blackmail material that the Obama Administration and/or the liberal wing of the Court has on him that he has gone so wobbly. It is either that or a pathetic need to be loved by the mainstream media elites.

He wants the “Roberts Court” to be respected. However, the Chief Justice should remember that respect is earned and not given. He sure as hell didn’t earn any respect today.

In a time when there is unrest in our streets and the pandemic has led to an increase in crime in many locations, the need for the Court to reaffirm its rulings in Heller and McDonald was now.

They had 10 chances and they blew every bloody one of them.