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February 20, 2023
How long until the Supreme Court takes up another Second Amendment case after Bruen?
As detailed in a number of prior posts, the Supreme Court's landmark Bruen Second Amendment decision has created considerable legal uncertainty, especially for various federal gun control laws. And, as two recent press pieces highlight, it seems like only a matter of time, given the lower-court churn over application of Bruen, before the Justices are going to have to engage with all the post-Bruen jurisprudence.
From the AP, "Turmoil in courts on gun laws in wake of justices’ ruling." An excerpt:
Courts in recent months have declared unconstitutional federal laws designed to keep guns out of the hands of domestic abusers, felony defendants and people who use marijuana. Judges have shot down a federal ban on possessing guns with serial numbers removed and gun restrictions for young adults in Texas and have blocked the enforcement of Delaware’s ban on the possession of homemade “ghost guns.”
In several instances, judges looking at the same laws have come down on opposite sides on whether they are constitutional in the wake of the conservative Supreme Court majority’s ruling. The legal turmoil caused by the first major gun ruling in a decade will likely force the Supreme Court to step in again soon to provide more guidance for judges.
From USA Today, "As nation reels from Michigan State shooting, courts wrestle with access to guns." An excerpt:
The Supreme Court has said a lot recently about what the Second Amendment means. The next question for the justices may be: Who does it not apply to?
A series of criminal cases percolating in lower federal courts are striking at a question about when the government may deny someone -- such as a person convicted of a nonviolent felony -- access to a gun. Experts on both sides of the gun debate say the question is likely to make its way to the Supreme Court soon.
For various reasons, I suspect the Justices will be inclined to avoid taking up these matters for as long as possible. It was, after all, a dozen years between the the last major Second Amendment ruling (McDonald) and Bruen. But, in part because numerous lower-court rulings are striking down numerous federal criminal laws, I suspect the Justices will have to get back to these matters pretty soon.
"Pretty soon" in Supreme Court timelines likely still means a year or two, perhaps even longer. But I welcome in the comments any and all predictions as to when, and what kind of, a case ultimately serves as the vehicle for SCOTUS to clarify just where Bruen will take Second Amendment jurisprudence.
February 20, 2023 at 04:08 PM | Permalink
Comments
We are heading towards everyone being armed. Going back to the old West. Can we expect mini ok corrals on every corner? When I was young, quarrels used to be decided with fists; more and more with guns. I don't have a good feeling.
Posted by: Michael R. Levine | Feb 20, 2023 6:03:49 PM
Michael R. Levine,
You watch too many movies. The old west was not very wild at all. It’s silver screen mythology.
https://ammo.com/articles/american-old-west-hollywood-wild-west-money-gun-control
Posted by: TarlsQtr | Feb 20, 2023 8:07:47 PM
I amend my previous comment. In addition to fists, we occasionally settled disputes with rock fights. I still have a scar on my left ear from a rock thrown at me.
Posted by: Michael R. Levine | Feb 21, 2023 9:50:42 AM
I looked back at some recent cases where the Supreme Court quickly reversed ground. It was nine years between National League of Cities and Garcia; three years between Grady and Dixon; and four years between Booth and Payne. My hunch is that we are looking at something similar for Bruen before the Supreme Court decides that historical analogy is just not workable and goes back to the same compelling interest test that it applies for most other constitutional rights.
Posted by: tmm | Feb 21, 2023 11:30:38 AM
Interesting that most of your examples, tmm, are 30+ years ago. In the sentencing space, we had 11 years between Harris (2002) and Alleyne (2013), though that came after Apprendi (2000) and Blakely (2004) partially overturned Watts (1997) and we also had Ring (2002) overturning Walton (1990).
I am inclined to guess that the Justices will "massage" the Bruen test rather overrule it. Specifically, I assume they will find a way to say there is sufficient history supporting a "dangerous person" limit on the reach of the Second Amendment and so lower courts can and should uphold prohibitions that keep guns from dangerous persons. If that is applied broadly, we are functionally back to the pre-Bruen world. But, if applied with some teeth, some gun prohibitions will be cut back. That's my prediction for the time being, though a lot could change if (when?) Justices Thomas and Alito get replaced during the next GOP presidency. (JT will be 77 in 2025, 81 in 2029; SA will be 75 in 2025, 79 in 2029.) I think Justices Thomas and Alito are most invested in a robust Second Amendment.
Posted by: Doug B | Feb 21, 2023 12:28:18 PM
"I think Justices Thomas and Alito are most invested in a robust Second Amendment."
And there you give away the game. Aren't all constitutional rights supposed to be "robust."
Posted by: federalist | Feb 21, 2023 2:15:24 PM
The only time I'm sure we'll get a cert grant is for the Big Enchilada. That is, there will be a grant when some outlier district judge finds the federal FIP statute unconstitutional, and holds that, under Bruen, convicted felons do, in fact, have the right to possess firearms. SCOTUS will reverse that, by no less than 6-3 and perhaps unanimously.
Posted by: Bill Otis | Feb 21, 2023 2:35:41 PM
Is a FIP ban based on state convictions constitutional? That's a tougher question--but not from 2 amendment.
Posted by: federalist | Feb 21, 2023 3:11:27 PM
Of course, federalist, all constitutional rights are supposed to be robust. But, in practice, many folks have many different views about what should be considered "robust." E.g., I think a "robust" approach to the Fifth and Sixth Amendments should have something to say about sentences greatly enhanced by acquitted facts. I also think a robust Second Amendment would not apply to all "felons." Bill has a different view on these matters, though I doubt he would say he is against "robust" application of constitutional rights.
As for your peculiar second comment, federalist, I am not sure what you mean. Federal FIP criminal law makes no distinction concerning the source of the underlying felony and it also has a section that applies to state DV misdemeanants. Indeed, state misdemeanors can be treated as felonies that dispossess under federal law as highlighted by the interesting case now before the en banc Third Circuit. That case involves Bryan Range, whose state conviction involved pleading guilty to the misdemeanor of welfare fraud under 62 Pa. Cons. Stat. § 481(a). Here is how the district court described his criminal actions after Range brought suit to challenge the constitutionality of § 922(g) as applied to him:
"Mr. Range pled guilty, in August 1995, to one count of making a false statement to obtain food stamps assistance, in violation of 62 Pa. C.S. § 481(a). At that time, Mr. Range mowed lawns for a living, earning between $9 and $9.50 an hour, or approximately $300 per week. He and his wife struggled to make ends meet caring for their three children — a three-year-old and twin two-year-olds. Mrs. Range prepared an application for food stamps, which she and Mr. Range both signed. The application omitted Mr. Range's income. Mr. Range alleges that he did not review the application, but accepted responsibility for it and acknowledged that it was wrong to not fully disclose his income. Mr. Range was sentenced to three years’ probation, which he satisfactorily completed, $2,458 in restitution, $288.29 in costs, and a $100 fine. He served no time in jail."
https://casetext.com/case/range-v-lombardo
Posted by: Doug B | Feb 21, 2023 4:12:19 PM
Doug --
"I think a "robust" approach to the Fifth and Sixth Amendments should have something to say about sentences greatly enhanced by acquitted facts. I also think a robust Second Amendment would not apply to all "felons." Bill has a different view on these matters, though I doubt he would say he is against "robust" application of constitutional rights."
Actually, Douglas, I DO oppose robust application of constitutional rights!!! For example, I think the First Amendment should be sharply limited so that you can't shout FIRE in a crowded theater. I know only fascist kooks take such a horribly stringent view, but what can I tell you?
Still, I do have a question: Wouldn't a robust view of the literal language of the Second Amendment require that ALL previously convicted felons maintain their right to arm themselves, and not just sweeties like Martha Stewart? I mean you're not going to tell me you secretly have a crabbed view of the Second Amendment................are you??!! Oh dear, I need my smelling salts.
Posted by: Bill Otis | Feb 21, 2023 6:05:09 PM
I don't think that it is in the federal government's enumerated powers to criminalize simple gun possession on the basis of a state conviction. With respect to a federal conviction, then the restriction would be incident to the federal government's power to punish those convicted of federal crimes.
Posted by: federalist | Feb 21, 2023 6:21:49 PM
To be clear, federalist, do you think the feds can criminalize gun possession for anyone other than a federal convict? How about someone "who has been adjudicated as a mental defective or who has been committed to a mental institution"? Or how about someone "who is an unlawful user of or addicted to any controlled substance"? And if the feds can criminalize possession of a plant under their enumerated powers (see Raich), why can't they criminalize possession of a gun (which is far more likely to have moved in interstate commerce)?
Posted by: Doug B | Feb 21, 2023 6:34:23 PM
One of my pet peeves about 18 U.S. Code section 922(g)(9) (possession of a firearm after having been convicted of a crime of domestic violence) is that the ATF and the DOJ have refused to promulgate a list of statutes for each state and D.C., the violation of which constitute convictions for a crime of domestic violence. How can one know he is violating 922(g)(9) if he doesn't know which state convictions to which the Federal statute will apply? A few years ago, I saw this situation play out in a Kentucky case. John had 26 misdemeanor convictions, but no felony convictions. His girl friend Sarah obtained a domestic violence restraining order against him. The Fayette County Sheriff's department came to his home and confiscated 11 firearms, since he could not possess them under 922(g)(8) while subject to a domestic violence restraining order. A few months later, Sarah dismissed her domestic violence case and John asked the Sheriff's department to return his 11 firearms, since he was no longer subject to any domestic violence restraining order. The Sheriff (Kathy Witt, the longest serving female sheriff in America!) refused to return the firearms because she said that one of his misdemeanor convictions, harassment with contact, constitutes a misdemeanor conviction of a domestic violence crime. Sheriff Witt's position was not supported by and case law or statute. In fact, Kentucky attorneys had long pleaded down charges of 4th degree (misdemeanor) assault to harassment wit contact to (they thought) avoid the characterization of the conviction as being for domestic violence. John and Sarah got clever, and submitted an agreed consent Order to the Family Court Judge who had handled Sarah's domestic violence protective order case. The Order recited the Federal statutes, stated that in light of the fact that the domestic violence case had been dismissed, the Sheriff of Fayette County was Ordered and Directed to return John's 11 firearms to him forthwith. The Sheriff declined to comply with the Circuit Judge's Order, and said that he could not Order her to return firearms in violation of 922(g)(9). She said that she was replying upon advice from the ATF. Frustrated, John filed a section 1983 lawsuit against Sheriff Witt in the District Court for he Eastern District of Kentucky, seeking return of his firearms (which were allegedly being retained in violation of his 2nd Amendment rights), damages and attorney's fees. Much to his and his lawyer's chagrin, Judge Karen Caldwell dismissed his section 1983 case, holding that it was not a proper vehicle to seek return of firearms under the circumstances. John could not afford to appeal to the 6th Circuit, so Sheriff Witt is still holding his 11 firearms. There is still no list of crimes from ATF or the DOJ about whether a Kentucky "harassment with contact" conviction constitutes a misdemeanor crime of domestic violence or not; and there is no guiding case law or statute either. Is this fair? Doesn't it really violate the notice requirements of the Due Process clause, that citizens should be fairly informed in advance about exactly what misconduct my disqualify one from possessing a firearm? Since the Supreme Court's Bruen decision, section 922(g)(8) has been found to be unconstitutional by the 5th Circuit and the U.S. District Court for the Eastern District of Kentucky. And I think it is only a matter of time until section 922(g)(9) is also found to be unconstitutional. Maybe when that occurs, Sheriff Witt will finally give John back his 11 firearms!
Posted by: Jiim Gormley | Feb 22, 2023 12:01:43 AM
I am happy to be wrong, but no, I don't believe that the federal government has the power to pick out which citizens get to have a gun unless there is some federal hook. Deeming something per se contraband is analytically distinct.
Posted by: federalist | Feb 22, 2023 9:06:33 AM
Well, opioids are not per se contraband, nor are commercial and industrial chemicals, nor airplanes nor so many other items that can be used very safely or very dangerously. Are you saying, federalist, that in-state use of all this stuff cannot be federally regulated if that amounts to picking out who can and cannot legally access these items?
Posted by: Doug B | Feb 22, 2023 11:01:32 AM
Much different issue--these are products that are so intertwined with interstate commerce, that federal regulation is proper. Some dude possessing a gun he got from wherever ain't the same. The ability to prosecute gun possessors based on state convictions comes dangerously close to a general police power.
Posted by: federalist | Feb 22, 2023 11:53:08 AM
The ability to call a plant grown in one's backyard for personal use "contraband" and criminalizing its possession is not just "dangerously close to a general police power," it is an obvious example of the "general police power." Guns are almost never "home grown," and their production and sale is not only "intertwined with interstate commerce" but also used to facilitate all manner of commerce-impacting crime. But the plant subject to criminalization in Raich is home grown has no connection to interstate commerce whatsoever.
I suspect, federalist, that you really are saying that the Second Amendment provides a special reason why we should be especially wary of federal prohibitions on arms keeping. That's fine, but a different kind of claim (and I think a lot more defensible) than claims that commercially manufactured guns have less connection to interstate commerce than home-grown plants.
Posted by: Doug B | Feb 22, 2023 12:57:34 PM
There are line-drawing issues, to be sure, and I am sympathetic to the MJ argument. Gun usage v. possession different issue, of course. I really don't rely on the Second Amendment per se, but there are normative issues as to how far the government can go, and that is largely rights-based. Marijuana can be looked at as a scourge--but guns, not so much, given the Second Amendment
Posted by: federalist | Feb 22, 2023 1:08:38 PM
federalist, I think a far stronger case can be made for federally regulating guns as a "scourge" because MJ cannot be readily used to afflict harm or threatened harm on others and even significant self-harm is much, much higher for guns than marijuana. What I surmise from your statements is that the Second Amendment creates a constitutional requirement for the feds to acknowledge/respect the benefits of guns and not just focus on their harms when federally regulating. Fair enough, but that seems to be ultimately a Second Amendment rights-based claims, not an argument grounded in the inherent limits of federal power. (That said, I agree with the dissenters in Raich, and I am eager to see court-enforced limits on federal power even beyond rights-based foundations.)
Posted by: Doug B. | Feb 22, 2023 1:57:22 PM
Not what I am saying. Guns, by definition, cannot be a "scourge" in the legal sense because the right to have them is of constitutional moment. In other words, the Constitution has made that judgment regarding whether guns are a "scourge." That's a Second Amendment argument, I guess, but it's not really a Second Amendment argument because felons don't have a right to have guns.
I'll give you a hypo--could the federal government ban abortion? Clearly, there's a commerce in abortion, and many people cross state lines to have them. Could the federal government pass a law that all stores are to be closed on Sunday? There are value judgments inherent in answering these questions. Could the federal government ban SFH zoning?
Posted by: federalist | Feb 22, 2023 5:08:59 PM
I am pro-life, btw, and I have grave doubts about the government's ability to ban abortion.
Posted by: federalist | Feb 22, 2023 5:21:13 PM
And why don't "felons have a right to have guns"? They are still part of "the people." And people convicted of (state or federal) felonies have rights to free speech and religion, have rights against unreasonable searches and seizures, have rights to due process and to just compensation for takings, have rights to counsel and to a jury trial and so on and so on. You are assuming away the core issue when you say "felons don't have a right to have guns." Perhaps you want to say guns are a scourge only in the hands of felons, but it cannot be that is true only for federal felons and not for state felons. Such a framing also gives away the game and has no support in the text of the Second Amendment.
Again, I think Raich was wrongly decided and that there should be a sphere of personal, local freedom free from FEDERAL regulation when an activity has no real proximity to commerce. Abortion and all sort of other modern health care matters (medicines, contraception, etc.) have a lot of proximity to lots and lots of commerce, so I do not think even a restrictive commerce clause interpretation readily limits what the feds might do here (though I think the Ninth and Tenth Amendments very well might).
And, of course, constitutional powers are quite distinct from sound policy. I think the feds have lots of powers to regulate business and housing, but I never want them using all their powers. The Raich case asks whether those powers have any limit, and SCOTUS essentially said no. I have advocated elsewhere that Raich ought to be relitigated with the current Court.
Posted by: Doug B | Feb 22, 2023 6:04:32 PM
Doug --
"And why don't "felons have a right to have guns"? They are still part of "the people." And people convicted of (state or federal) felonies have rights to free speech and religion, have rights against unreasonable searches and seizures, have rights to due process and to just compensation for takings, have rights to counsel and to a jury trial and so on and so on."
Am I correct in believing that your quite strong position here means that previously convicted felons have the right to own guns even if the previous conviction was for a crime of armed violence? If that isn't your stance, why not?
Posted by: Bill Otis | Feb 22, 2023 6:11:58 PM
Bill: My sense of the history and tradition surrounding the Second Amendment when ratified was that disarming dangerous individuals was seen as consistent with the Amendment. I am not an historian, but I found then-Judge Barrett's discussion on this front convincing in her Kanter dissent. That dissent starts this way:
"History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era
legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury
service, not to individual rights like the right to possess a gun. In 1791 — and for well more than a century afterward —
legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary
to protect the public safety."
Because I am not a "pure originalist," I am inclined to combine text, history and tradition, and concerns for the common good and modern realities in my approach to constitutional interpretation. That leads me to conclude a "felon" like Brian Range ought not forever lose his Second Amendment rights, but Dzhokhar Tsarnaev should. Notably, we sometimes condition other constitutional rights on past CJ status, but to completely extinguish Second Amendment rights forever based on the label "felon" --- a label which millions and millions in the US have, most of whom are not dangerous --- seems to make the Second Amendment a second-class right. Perhaps that's what you think it needs to be, or perhaps we need a constitutional amendment to create a new gun possession code, but that's my current take based on the text, history and tradition, and concerns for the common good and modern realities.
Posted by: Doug B | Feb 22, 2023 6:34:53 PM
Doug --
Thanks for your answering that question. I might not agree with all of it, but it's certainly a reasoned and level-headed response.
Posted by: Bill Otis | Feb 23, 2023 9:09:53 PM
