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 Wall Street Journal published a scathing editorial today on the Supreme Court deciding to moot NYSRPA v City of New York. I think they got it right. For a co-equal branch of government to cower before the threats of senators like Sheldon Whitehouse should be unthinkable. Unfortunately, it wasn’t.
What an enormous abdication. The Supreme Court ducked its first Second Amendment case in a decade on Monday, and the only plausible explanation is that Chief Justice John Roberts wanted to avoid becoming a target of vengeful Senate Democrats.
The editorial then takes note of Justice Alito’s dissent which was joined by Justice Gorsuch in whole and by Justice Thomas in part.
The majority buckled and ignored previous rulings to do it. As Justice Alito writes, the Court’s precedents hold that “a case ‘becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’” Plaintiffs want to transport their firearms without worrying about getting arrested if they stop somewhere along the way. The city even admitted in oral arguments that it’s unclear whether this is allowed. Justice Alito says this and more make the rule’s violation of the Second Amendment “not a close call.”
On the mootness point, Justice Alito also pokes his colleagues with this hypothetical: “A State enacts a law providing that any woman wishing to obtain an abortion must submit certification from five doctors that the procedure is medically necessary. After a woman sues, claiming that any requirement of physician certification is unconstitutional, the State replaces its old law with a new one requiring certification by three physicians. Would the court be required to dismiss the woman’s suit?” You know the answer.
Looking at Justice Kavanaugh’s concurrence, the editorial board found it “curious”.
Justice Kavanaugh’s role here is curious because, while he joined the majority on mootness, he wrote a concurrence agreeing with the dissent on the Second Amendment merits. This looks to us as if he is trying to protect the Chief Justice from being the fifth vote, and the sole “conservative,” providing a liberal victory while making clear he’s still a solid vote himself for gun rights. The phrase for this is too clever by half.
They note that the Supreme Court has been timid on the Second Amendment and is treating it as a second class right. Moreover, if shrill threats from the Whitehouses of the world and the media can sway the Court, then we can expect it to escalate on this and other issues.
They conclude on the role of Chief Justice John Roberts.
The Chief Justice is carving out a reputation as a highly political Justice whose views on the law can be coerced with threats to the Court’s “independence.” The danger for the Court is that, in bending to these threats, the Chief is compromising the very independence he claims to want to protect.
I wish Kavanaugh was more like his fellow Georgetown Prep classmate Justice Gorsuch. I said back when Kavanaugh was selected that he wasn’t my first choice. I much preferred Tom Hardiman and Raymond Kethledge. Both had better backgrounds on the Second Amendment. Moreover, neither were Ivy League law grads which I found to be a big plus.
My only hope is that the Court does take one or more of the Second Amendment cases that are still out there awaiting cert. Ideally, they would take one of the carry cases, Mance v. Barr, and Pena v. Horan. That threesome with the correct decision would allow carry outside the home, poke holes in GCA68, and do away with the California handgun roster.
The US Supreme Court issued its ruling on New York State Rifle and Pistol Association v. City of New York today. The bottom line is that they punted in a 6-3 decision finding the case moot.
More as I read the opinion and the dissents.
I know we wished for more but this, as much as I hate it, was not unexpected after the City of New York changed its regulations.
UPDATE: From Jonathan Adler at the Volokh Conspiracy.
Many were anticipating a big Second Amendment ruling in New York State Rifle & Pistol Association v. New York, but it was not to be. The New York legislature revised the laws in question while the litigation was pending, rendering moot the precise question before the Court. Accordingly, in a brief Per Curiam opinion the Court sent the case back down to the lower court for consideration of the relevant Second Amendment claims against the rules currently in force. Justice Kavanaugh wrote a brief concurrence. Justice Alito, joined by Justices Gorsuch and Thomas, dissented.
For what it’s worth, I think the Court got this one right: The case as argued is moot. At the same time, the dissenters are correct that additional guidance to lower courts (and states) on the permissibility of gun restrictions is long overdue. In this regard, I think Justice Kavanaugh’s concurrence got things right: “petitioners’ claim for injunctive relief against New York City’s old rule is moot and that petitioners’ new claims should be addressed as appropriate in the first instance by the Court of Appeals and the District Court on remand.” In addition, there is ample cause for concern that “some federal and state courts may not be properly applying Heller and McDonald.” Accordingly, Kavanaugh wrote: “The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”
The Supreme Court in today’s order list has denied certiorari in Guedes et al v. BATFE. Guedes and the Firearms Policy Foundation had appealed the decision of the US Court of Appeals for the District of Columbia. That decision denied an injunction in the case.
Justice Neil Gorsuch agreed with the decision to deny certiorari in the case given it had not been fully briefed and argued on the merits. He did think the Court of Appeals made an error in relying on Chevron deference in this case because it involves a criminal penalty. He also noted that both the plaintiffs and the government had expressly argued that any decision should not rely on Chevron deference.
Gorsuch referred to the BATFE’s actions on reclassifying bump stocks as “bureaucratic pirouetting”.
Chevron’s application in this case may be doubtful for other reasons too. The agency used to tell everyone that bump stocks don’t qualify as “machineguns.” Now it says the opposite. The law hasn’t changed, only an agency’s interpretation of it. And these days it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations. How, in all this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous; to guess again whether the agency’s initial interpretation of the law will be declared “reasonable”; and to guess again whether a later and opposing agency interpretation will also be held “reasonable”? And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?
If I had to hazard a guess, when this or one of the sister cases involving the reinterpretation of the NFA to ban bump stocks does come before the Supreme Court fully briefed on the merits, Gorsuch will most definitely be in favor of hearing the case. Moreover, I would go further and say he would not find in favor of BATFE.
The oral argument in the NY State Rifle and Pistol Association versus City of New York is the top of the calendar today for the Supreme Court. This marks the first Second Amendment case to reach this stage since 2010’s McDonald v. Chicago.
The oral arguments are being recorded. The Supreme Court also will make transcripts available. Both will be available on Friday after the Court’s regular conference.
For a more contemporaneous report on the proceedings without the mainstream media slant, Tom Gresham of Gun Talk was given media credentials to cover the case and will be posting on Twitter. His Twitter feed is found here. Alternatively, his Twitter handle is @guntalk. He also will be doing a Facebook livestream before and after the session. You can find it here.
All I can say regarding the case is to keep your fingers crossed. The US government has taken the position that the case is not moot. Paul Clement who will be arguing on behalf of the NYSRPA agrees in his response.
The US Supreme Court has denied a writ of certiorari to Remington in their appeal of the Connecticut Supreme Court’s ruling. That ruling allowed the lawsuit by some of the families of the Newtown murders against Remington to go forward. The Connecticut Supreme Court had said Remington would not be protected by the Protection of Lawful Commerce in Arms Act.
The denial was in the Order List released this morning.
As I mentioned earlier, the anti-PLCAA forces had brought out the big legal guns with Obama’s former Solicitor General. His argument must have swayed enough justices that they voted against taking the case.
You can read more about the Connecticut Supreme Court’s ruling in the case here.
This means that the lawsuit against Remington will go to trial in Connecticut Superior Court and that the plaintiffs can go on a fishing expedition through Remington’s records.
To be blunt, this denial of cert sucks. It turns on its head the supremacy of Federal law and makes a mockery of a law passed by Congress to prevent exactly what the plaintiffs are seeking to do.
UPDATE: Dave Hardy, 2A scholar and attorney, gives his take on the SCOTUS denial of cert in the case. He still thinks the plaintiffs have a long way to go before they win.
Big point: the trial court dismissed the suit for “failure to state a claim.” This is the first stage at which a suit can be reviewed. Dismissal is only proper if it is based on the pleading, bare written allegations. The CT Supremes said only that it couldn’t be, at this stage. Plaintiff still have to prove their allegations (after discovery, they can be challenged by a motion for summary judgement, and if that’s denied, fought at trial). The CT Supremes even allowed that plaintiff may have to surmount “herculean” barriers to win.
I’ll defer to Dave given his long experience as an attorney.
by