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January 8, 2025
What kind of Second Amendment case will be next for SCOTUS after Bruen and Rahimi?
Anyone and everyone following Second Amendment litigation since the Supreme Court's landmark Bruen ruling knows that it is not a question of whether, but just a matter of when, the Justices will take up challenges to various federal criminal gun prohibitions to continue adumbrating for lower courts just how they think originalistism is supported to work here. The Rahimi ruling, perhaps unsurprisingly, only deepened uncertainties (and lower court splits) on various issues, and a number of recent pieces highlighting just some of the Second Amendment jurisprudential messiness has me feeling somewhat more sure another Second Amendment cert grant will be coming soon. But these articles and other matters also have me feeling somewhat less sure about what particulars issues and cases the Court will decide to take up:
From Bloomberg Law, "Gun Litigation Will Keep Federal Appeals Courts Busy in 2025"
From the New York Times, "Courts in ‘State of Disarray’ on Law Disarming Felons"
From Reason, "5th Circuit Reaffirms That Prosecuting a Marijuana User for Illegal Gun Possession Was Unconstitutional"
From Stateline, "Judges topple gun restrictions as courts chart an uncertain path forward"
From The Volokh Conspiracy, "Ohio Court Strikes Down Categorical Prohibition on Gun Possession by People Under Indictment"
As some of the above articles highlight, there is a wide array of churning lower-court litigation assailing gun restrictions well beyond federal criminal prohbitions in 18 USC § 922(g), and so it is certainly possible that the Justices might take up disputes over restrictions on types of guns or other regulatory matters before addressing federal possession prohibitions again. In addition, because the incoming Trump administration could be more supportive of a more expansive view of the Second Amendment, the Supreme Court's approach to 922(g) disputes migth get influence by some new advocacy coming soon from the Justice Department.
Interesting times.
January 8, 2025 at 04:32 PM | Permalink
Comments
Government will want court to take cert in a case with a violent or semi-violent offender to uphold general unlawful possession statute. Defense will want court to take a case with the most non-violent felony imaginable. I think Supreme Court will either start with a violent offender or take a couple of cases with different types of felonies at the same time (if they want to just resolve this once and for all).
As we know from ACCA, defining what is a violent offense can be a difficult thing to do.
Posted by: tmm | Jan 9, 2025 12:41:32 PM
Excellent points, tmm.
I wonder whether the Supreme Court will avoid "violent" felony altogether and describe the line between 922(g)(1) constitutionality and unconstitutionality in terms of dangerousness instead.
That being said, Rahimi repeatedly talked about the petitioner having been found to pose a "clear threat of physical violence to another" or a "credible threat to the physical safety of others." I don't see how the Court can ignore its prior ACCA or 924(c) jurisprudence on the meaning of physical force or violence in deciding a 922(g)(1) 2nd Amendment case. I think you're right that the Court will consolidate several cases into one grand 922(g)(1) opinion.
However, I think that despite SCOTUS's desire to "resolve this once and for all," we will see the issue arise repeatedly over the next decade as petitioners seek rulings to address the many interstitial questions that will arise, just as Johnson begat Dimaya which begat Stokeling, Davis, Borden, Taylor ad infinitum.
Posted by: Tom Root | Jan 10, 2025 6:47:30 AM
Two things are going to happen. SCOTUS will, as gently as possible, push back on some of the more dramatic language in Bruen; and the federal FIP statute will survive mostly intact.
Posted by: Bill Otis | Jan 10, 2025 10:00:58 PM
