In 2008 the United States Supreme Court published its first, in-depth decision on the Second Amendment which held that the Second Amendment right was an individual right unconnected with service in a militia. Two years later the Supreme Court held that the Second Amendment is binding on all state and local governments in addition to the Federal government.
There have been literally hundreds of Second Amendment appeals filed with the Supreme Court since its 2008 decision and all but one has been turned down.
This past June we discovered why these appeals to the Supreme Court have been turned down – there hasn’t been a “split” between the Federal courts of appeal or the highest states courts in their interpretation of the Second Amendment.
The reason there hasn’t been a split thus far is because the appeals involve issues that the Federal and state courts believe were resolved in the Supreme Court’s 2008 decision. We’ve had countless convicted felons who have appealed their convictions for possession of a firearm by a convicted felon. In its 2008 decision the Supreme Court said that convicted felons presumably do not have Second Amendment rights and none of these convicted felons made an argument, to the court’s satisfaction, that rebutted that presumption.
Another class of appeals which has been denied is those in which people claim that they have a right to carry a weapon concealed. In its 2008 decision, the Supreme Court said that the Second Amendment guarantees a right to openly carry arms and that there is no right to carry weapons concealed. Needless to say that when the Supreme Court says there is no right to carry a weapon concealed and convicted felons fall outside the scope of the Second Amendment, and did so as recently as 2008, arguing that the Supreme Court was wrong in an appeal to the Supreme Court doesn’t get very far.
The Supreme Court Rules (specifically Rule 10) do not absolutely require there to be a split in order to grant an appeal but until now, there has not been an appeal to the Supreme Court which presents a clear split between the Federal circuits as exists now (the 1st and 7th) as well as a clear split with the highest court in Massachusetts. One split is all that is required to satisfy Rule 10, here we have two splits with the 7th Circuit.
The Massachusetts high court and the 1st Circuit Court of Appeals held that there is no right to possess (carry) a firearm in public. The 7^th Circuit Court of Appeals held that the Second Amendment right to bear arms does indeed extend to public places.
The case pending before the US Supreme Court is Aaron Powell v. Steven Tompkins, Sheriff, Suffolk County, Massachusetts. No. 15-6063
The nice thing about this case is it does not involve a challenge by a felon in possession of a firearm or concealed carry in public. The question before the court is a simple one. In short, is the possession or carrying of a firearm by default lawful under the Second and Fourteenth Amendments or is it by default unlawful?
The US Supreme Court has asked for a response from Tompkins which is due on December 7th. Powell will then file his reply brief and then we wait for the Supreme Court to decide whether or not to hear the case. That decision will likely be made prior to May 23rd of 2016.