Justice Neil Gorsuch and the Second Amendment

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Sometime between this Friday evening and Monday, Appellate Judge Neil Gorsuch will become an Associate Justice of the United States Supreme Court just in time for him to vote on whether or not to grant several Second Amendment cert petitions which have already been filed or soon will be.

The relationship between Justice Neil Gorsuch and the Second Amendment may soon become clear.
Judge Neil Gorsuch soon to be Justice Neil Gorsuch

Peruta v. California

The first of these petitions, out of the 9th circuit court of appeals, will be Peruta v. California (formerly Peruta v. San Diego) which asks this question in its cert petition:

“Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.”

The State of California presents a different question for the court:

“Whether the Second Amendment protects a specific right to carry a concealed handgun in public spaces in cities and towns, based only on a general desire for self defense.”

Unfortunately for the NRA lawyers who represented Ed Peruta and his fellow plaintiffs, the question the NRA presented in its cert petition isn’t the question the NRA presented to the 9th circuit court of appeals and it isn’t the question decided by the 9th circuit court of appeals.

Flag of California.
Flag of California (public domain)

For the better part of a decade, the NRA lawyers argued that California can, should, and must ban Open Carry in favor of concealed carry. Therefore, the only question before the 9th circuit court of appeals was whether or not there is a Second Amendment right to carry a loaded, concealed handgun in public.

The 9th circuit court of appeals held that there is no concealed carry right and expressly did not answer the question as to whether or not there is a right to openly carry a firearm in public because that question was not before the court.

On April 13, 2017, at 1:30 pm all nine justices of the US Supreme Court will meet in a private conference and vote for the first time on whether or not to grant the Peruta cert petition. It takes the vote of four justices to grant a cert petition but just one Justice to hold the petition over for the next conference. When a cert petition is held over to the next (or future conference) it is called a “relist.”

Peruta is not the first cert petition which sought to reverse the decision of a lower court upholding restrictions on the carrying of handguns in public.

Not counting those cert petitions filed by convicted criminals and counting only those petitions filed by the so called gun-rights groups, we have:

New York

Kachalsky v. Cacace was out of the Second Circuit in which the petitioners presented the following questions:

(1) Whether the Second Amendment secures a right to carry handguns for self-defense outside the home; and (2) whether state officials violate the Second Amendment by denying handgun carry licenses to responsible, law-abiding adults for lack of “proper cause” to bear arms for self-defense.

The State of New York saw the question differently:

“Whether the Second Amendment to the United States Constitution prohibits the State of New York from requiring an applicant to show proper cause to obtain a license to carry a concealed handgun in public.”

Notice the similarity between the question presented by the State of New York and the question presented by the State of California.

Flag of New York State.
Flag of New York State (public domain)

The petitioners in Kachalsky, like the petitioners in Peruta, never sought to openly carry a handgun and never challenged the state laws prohibiting the Open Carry of handguns. In both cases, the petitioners sought to carry handguns concealed which the US Supreme Court has already said is not a Second Amendment right.

There was no relist in Kachalsky. The cert petition was denied in its first conference and listed as denied in the Orders list of April 15, 2013.

It is more likely that the Kachalsky cert petition was not even discussed in conference. It was probably put on the “dead list” prepared by justices’ clerks who prepare memos summarizing each cert petition and then deliver them to the justices to read along with a recommendation as to whether or not the cert petition should be considered in conference.

Maryland

Woollard v. Gallagher was out of the Fourth Circuit in which the petitioners presented the following question:

“Whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self defense first prove a “good and substantial reason” for doing so.”

The State of Maryland presented a different question:

“Whether the Second Amendment to the United States Constitution prohibits the State of Maryland from requiring a permit applicant to provide a good and substantial reason for carrying a handgun in public places for purposes other than in connection with hunting, target and sport shooting, organized military activities, and other statutorily-enumerated purposes for which no permit is required.”

Flag of Maryland.
Flag of Maryland (public domain)

The petitioners in Woollard, like the petitioners in Peruta and Kachalsky never sought to openly carry a handgun and Maryland licenses do not differentiate between concealed and Open Carry.

Nevertheless, the Second Amendment Foundation Attorney who represented Mr. Woollard (Alan Gura) insisted on making his a concealed carry case in his cert petition.

There was no relist in Woollard. The cert petition was denied in its first conference and listed as denied in the Orders list of October 15, 2013.

Texas

National Rifle Association of America v. McCraw was out of the Fifth Circuit in which the petitioners presented the following questions:

  1. Whether the Second Amendment right to bear arms for self-defense in case of confrontation includes the right to bear arms in public.
  1. Whether that right to bear arms extends to responsible, law-abiding 18-to-20-year-old adults.
  1. Whether Texas’s ban on responsible, law abiding 18-to-20-year-old adults bearing handguns in public for self-defense violates the Second Amendment and the Equal Protection Clause.

The State of Texas presented different questions:

Flag of Texas.
Flag of Texas (public domain)
  1. Whether the National Rifle Association (“NRA”), the sole petitioner in this case, has associational standing to challenge the Texas laws at issue.
  1. Whether either the Second Amendment or the Equal Protection Clause of the Fourteenth Amendment prevents Texas from maintaining reasonable minimum-age requirements for carrying concealed handguns in public.

Like the Second Amendment Foundation, the National Rifle Association was not seeking to “carry” handguns in public, it was seeking shall-issue concealed carry permits. In this case for persons aged 18-20.

There was no relist in this case. The cert petition was denied in its first conference and listed as denied in the Orders list of February 24, 2014.

New Jersey

Drake v. Jerejian was out of the First Circuit in which the petitioners presented the following questions:

  1. Whether the Second Amendment secures a right to carry handguns outside the home for self defense.
  1. Whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self defense first prove a “justifiable need” for doing so.

The State of New Jersey presented a different question:

“Whether the Second Amendment to the United States Constitution prohibits the State of New Jersey from requiring applicants to show a justifiable need to obtain a permit to carry a handgun, openly or concealed, in public.

New Jersey is different from New York and Maryland in one important respect. Neither the State of New York nor the State of Maryland prohibits one from openly carrying a long gun in public for the purpose of self-defense and neither state requires a license to openly carry a long gun in public.

Flag of New Jersey.
Flag of New Jersey (public domain)

New Jersey allows the Open Carry of a long gun only where it is permitted to openly carry a long gun.

But once again, the same Second Amendment Foundation Attorney Alan Gura insisted on making this a case about concealed carry.

Also, New Jersey grants more than 90% of its applications for handgun carry licenses.

For whatever reasons, reasons which we will never know, this case was relisted twice before the cert petition was denied and reported as denied in the Orders list of May 5, 2014.

SCOTUS Rarely Grants Second Amendment Cert Petitions

This was by no means an exhaustive review of purportedly Second Amendment cert petitions which have been denied.

In fact, SCOTUS has granted but three Second Amendment cert petitions, ever.

The last Second Amendment cert petition granted by SCOTUS was on March 21, 2016. It had been relisted ten times before its cert petition was granted. It had been six years, five months and 21 days since the prior Second Amendment cert petition was granted on September 30, 2009. That petition was granted in its first conference. The first Second Amendment case, District of Columbia v. Heller, was granted after one relist which these past several years has been what happens to most cases in which the cert petition is granted. One relist and then the cert petition is granted.

It is very unlikely that the Peruta cert petition will be granted. I hope it is granted but this case was mishandled from the beginning and SCOTUS does not take cases which have “vehicle” problems. The Peruta lawsuit began with four flat tires and a cracked engine block.

Which is the same condition in which it will no doubt be in as it is hauled off to the junk yard after its cert petition is denied.