Latest SCOTUS order list full of intrigue while engaging Second, Fourth and Sixth Amendment (originalist?) jurisprudence

The US Supreme Court is back in action with oral arguments this week after nearly a month off, and today's action starts with this lengthy new order list.  Running 58 pages, there are many interesting elements to this order list that should intrigue criminal justice fans, and I will highlight here items first catching my eye related to the Second, Fourth and Sixth Amendment: 

Second Amendment:  On the very first page of today's order list, the Supreme Court addresses two Eleventh Circuit criminal cases (Whitaker and Rambo) that involved constitutional challenges to the federal prohibition of gun possession by felons in this way:  "The judgments are vacated, and the cases are remanded to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of United States v. Rahimi, 602 U.S. 680 (2024)."  This would not be a big deal, except both Whitaker and Rambo were resolved by the Eleventh Circuit after the Supreme Court's Rahimi ruling; the Eleventh Circuit in these cases asserted that Rahimi did not undermine its precedents categorically rejecting a Second Amendment challenge to the federal felon-in-possesion charge.  As I read it, these GVRs are essentially statements from SCOTUS that Rahimi in fact does undermine -- or at least should or may be read as undermining -- any and all pre-Rehimi precedents that categorically foreclose a Second Amednment challenge to broad felon-in-possession laws. 

Fourth Amendment:  Over the last nine pages of today's order list, Justice Sotomayer has an extended statement regarding the denial of cert, joined by Justice Gorsuch, that reinforces my inkling that an originalist approach to criminal procedure rights may often provide more protections to individuals than some existing precedent (see prior posts here and here and here on the topic).  In Gonzales v. US, another case from the Eleventh Circuit, Justice Sotomayor starts her statement this way: 

Founding-era common law gave officers no authority to make an “arrest without a warrant, for a mere misdemeanor not committed in [their] presence.” Bad Elk v. United States, 177 U.S. 529, 534–535 (1900) (collecting sources).  This petition asks the Court to decide whether the Fourth Amendment incorporates that “in-the-presence” limitation on warrantless misdemeanor arrests.  There is reason to think it might.  After all, the in-the-presence requirement existed in some form at the founding. Ibid.  This Court has often held, moreover, that the Fourth Amendment “‘must provide at a minimum the degree of protection’” the common law afforded at the time of its adoption. Lange v. California, 594 U.S. 295, 309 (2021) (quoting United States v. Jones, 565 U.S. 400, 411 (2012)).

Important questions about the in-the-presence rule and its scope remain, and in this case they impede the Court’s review of the question presented. In an appropriate case, however, the Court should grant review to consider whether and to what extent the Fourth Amendment incorporates the in-the-presence rule.

Sixth Amendment: In the middle of today's order list, Justice Gorsuch has a short dissent from the denial of cert in a group of federal forfeiture cases.  The dissent runs only three paragraphs, so I will provide it in full here:

The Fifth Circuit held that a judge may order restitution in a criminal case based on his own factual findings, without the aid of a jury.  95 F.4th 328, 389 (2024).  About that, I have my doubts.  See Hester v. United States, 586 U.S. 1104, 1106–1107 (2019) (GORSUCH, J., dissenting from denial of certiorari).

Consistent with the Sixth Amendment’s promise of a trial by jury, this Court has held that “[o]nly a jury may find ‘facts that increase the prescribed range of penalties to which a criminal defendant is exposed.’” Erlinger v. United States, 602 U.S. 821, 833 (2024) (quoting Apprendi v. New Jersey, 530 U. S. 466, 490 (2000)). That means a jury must find both those facts that increase a criminal defendant’s exposure to imprisonment and any facts that increase his exposure to monetary fines.  See Southern Union Co. v. United States, 567 U.S. 343 (2012).  If all that is true, it is difficult to see how a judge’s factual findings might suffice to increase a criminal defendant’s exposure to a restitution award.  As this Court has recognized, “the scope of the constitutional jury right must be informed by the historical role of the jury at common law.” Id., at 353 (internal quotation marks omitted).  And more than a little evidence suggests that, at the time of the founding, juries found the facts needed to justify criminal restitution awards. See Hester, 586 U.S., at 1107 (opinion of GORSUCH, J.); see also Apprendi, 530 U.S., at 502 (THOMAS, J., concurring); Pet. for Cert. 10–12.

I would have granted review in this case to resolve whether the Fifth Circuit’s decision comports with this Court’s precedents and the Constitution’s original meaning. In the absence of this Court’s review, I can only hope that federal and state courts will continue to consider carefully the Sixth Amendment’s application to criminal restitution orders. Cf. State v. Davison, 973 N. W. 2d 276, 279 (Iowa 2022) (“restitution must be based on jury findings”).  The right to trial by jury should mean no less today than it did at the Nation’s founding.  See Hester, 586 U. S., at 1107 (opinion of GORSUCH, J.).

I suppose I could summarize all this interesting order-list action by observing that the current Supreme Court seems eager to keep revisiting settled jurisprudence regarding gun prohibitions based on its originalist vision on the Second Amendment, but only one or two Justices seem concerned with Fourth and Sixth Amendment jurisprudence that appear to contradict the original public meaning of the Constitution.  Hmmm.