Can We Save Our Right to Keep and Bear Arms?

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It seems we can’t save our right to keep and bear arms, if the Second Amendment lawyers have their way.

Two weeks to the day after the United States Supreme Court denied the concealed carry appeal in Peruta v. California (formerly Peruta v. San Diego) an Open Carry case out of Florida filed its cert petition. That case is Dale Lee Norman v. State of Florida.

The decision by the Florida State Supreme Court is a perfect candidate for Supreme Court review.

Unfortunately, Norman’s lawyers fumbled their cert petition.

Supreme Court justices Ginsburg and Kagan have explained in public, in on-the-record interviews, what is required of a cert petition in order for it to be considered as a candidate for being granted so that the justices may decide the case on the merits.

The four women who have served on the Supreme Court of the United States. From left to right: Justice Sandra Day O’Connor (Ret.), Justice Sonia Sotomayor, Justice Ruth Bader Ginsburg, and Justice Elena Kagan in the Justices’ Conference Room, prior to Justice Kagan’s Investiture Ceremony on October 1, 2010. (public domain photograph)

Justice Ginsburg expressed bewilderment at the number of lawyers who file cert petitions which do not conform to US Supreme Court Rule 10.

Most people think that the role of the Supreme Court is to correct errors made by the lower courts. That is a natural enough assumption, but it is wrong. After all, a party which loses in the trial court files an appeal and argues that the lower court made mistakes.

But the US Supreme Court justices don’t see that as their role. They see their role as resolving what they call “splits” between the Federal Circuit courts of appeals and state courts of last resort on questions of Federal law.

For example, the Florida Supreme Court held that Open Carry can be banned in favor of concealed carry.

That holding of the court created Rule 10 splits with every Federal appellate court and with every state court of last resort. The Florida high court also held that the Second Amendment right to bear arms extends to public places. This added to already existing splits.

The Norman cert petition should have opened with a section arguing that the petition should be granted to resolve these splits.

Nowhere in the Norman cert petition is the word “split” even mentioned.

In the absence of a Rule 10 split, the US Supreme Court will (rarely) grant a cert petition if the case involves one of national importance.

The question of whether or not the Second Amendment right to bear arms for the purpose of self-defense is certainly a question of national importance.

Unfortunately, Norman’s cert petition mentions “national importance” only once and that is in the context of a point on procedural law.

Finally, Rule 10 of the Supreme Court states:

“A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.”

You can guess what Norman’s cert petition is chock full of. Yep! It’s full of what the Justices say are reasons why they are least likely to grant a cert petition.

And to add insult to injury, I had pleaded with Norman’s lawyer to NOT limit his cert petition to the Florida ban on openly carried handguns. Florida bans the Open Carry of all firearms: handguns, rifles and shotguns.

In the last 200 years, the debate among the state courts was whether or not there is a right to carry handguns in public. Regardless of what a particular court thought about the scope of the Second Amendment, they were all in agreement that long guns are arms protected by the Second Amendment or its state analog.

Norman limited his cert petition question to handguns.

Since 2010, the Supreme Court has turned down every cert petition which was limited to handguns, regardless of whether or not the cert petition involved only concealed carry or permits to carry handguns which did not differentiate between concealed and Open Carry.

Now we wait to see if the State of Florida files a Brief in Opposition to the cert petition. The state does not have to file one. Florida can simply file a waiver to respond and if the Supreme Court does not request a response from Florida then the cert petition will be denied when the justices return from their summer break.

Florida’s Brief in Opposition is due one month after Norman filed his cert petition on July 10th. Typically, lawyers wait until the last day to file a waiver. If a Response is requested by the Court then that will likely take place the following week and Florida will be given two months to file its response.

That will take us to mid-October. If Florida files a Brief in Opposition after being requested to by the Court then Norman’s Reply Brief would be due one month later, mid-November.

For a cert petition to be granted in time for oral arguments to take place during the term which starts this October, the cert petition must be granted by the end of December 2017.

The Supreme Court does not have to wait until the Brief in Opposition (or the Reply Brief) is filed to grant a cert petition. And should Norman ask for an extension to file his Reply Brief, we will know by the end of next June whether or not the cert petition is granted.

I suspect that we will hear much sooner that Norman’s cert petition has been denied.

SUPREME COURT RULE 10

Rule 10. Considerations Governing Review on Certiorari

Review on a writ of certiorari is not a matter of right, but
of judicial discretion. A petition for a writ of certiorari will
be granted only for compelling reasons. The following, although
neither controlling nor fully measuring the Court’s
discretion, indicate the character of the reasons the Court
considers:
(a) a United States court of appeals has entered a decision
in conflict with the decision of another United
States court of appeals on the same important matter;
has decided an important federal question in a way that
conflicts with a decision by a state court of last resort;
or has so far departed from the accepted and usual
course of judicial proceedings, or sanctioned such a departure
by a lower court, as to call for an exercise of
this Court’s supervisory power;
(b) a state court of last resort has decided an important
federal question in a way that conflicts with the
decision of another state court of last resort or of a
United States court of appeals;
(c) a state court or a United States court of appeals
has decided an important question of federal law that
has not been, but should be, settled by this Court, or
has decided an important federal question in a way that
conflicts with relevant decisions of this Court.

A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.

Dale Lee Norman v. State of Florida case page at California Right To Carry.

Charles Nichols v. Edmund Brown, Jr., et al case page at California Right To Carry.

Related articles:

California Asks Supreme Court to Wait For Nichols v. Brown Open Carry Appeal

Supreme Court Decides to Wait for Another Second Amendment Case

Supreme Court Math and Concealed Carry in Peruta v. California