I’ve published a couple of videos about this cert petition. This is what I had to say about Reb Russell, II, Petitioner v. New Jersey prior to the granting of the NYSRPA v. Bruen cert petition and before the filing of the Brief In Opposition by New Jersey.
Unless a “carry” cert petition is granted before this petition is scheduled for its first conference it is D.O.A.
The petitioner did not even raise a Second Amendment claim in the lower courts (none is mentioned in the addendum).
SCOTUS does not consider questions raised for the first time before it.
Also, the opinion below is unpublished. This makes it even less likely for the petition to be granted even if it had raised a Second Amendment claim below.
Finally, the cert petition is dated 9 days after the Young v. Hawaii en banc opinion was published. The very first paragraph of the petition cites the three-judge panel decision in Young v. Hawaii which was vacated well over three years ago!
For the benefit of those of you who are new here, the primary reason why #SCOTUS grants cert petitions is to resolve circuit splits.
Citing a vacated three-judge panel decision that came to the opposite conclusion of the en banc panel which assumed jurisdiction over the case was a damn stupid thing to open with.
To make matters worse for the client his attorneys claim that the Young v. Hawaii three-judge panel decision said that the state must allow some form of carry, either openly or concealed.
The three-judge panel decision in Young v. Hawaii did not say that and could not have said that because a prior en banc panel of the 9th circuit court of appeals had already held that concealed carry is not protected by the Second Amendment and therefore the three-judge panel in Young v. Hawaii was bound by that prior holding and said so in their published opinion.
The three-judge panel decision in Young v. Hawaii was limited to handgun Open Carry.
This cert petition does not argue for Open Carry. However, it does argue for concealed carry in a state where a permit allows one to carry a handgun openly or concealed.
And, like every other cert petition which has proceeded it, this case is limited to handguns. It does not challenge any New Jersey prohibition on the Open Carry of long guns.
Well, SCOTUS granted a “carry” cert petition. More precisely, SCOTUS granted a concealed carry cert petition.
Given that a New Jersey handgun carry permit allows one to carry a handgun openly or concealed, there is a chance that this Reb Russell the 2nd cert petition is not Dead On Arrival.
New Jersey’s Brief In Opposition argues that the cert petition should be denied, and argues in the alternative that the petition should be held pending the decision in NYSRPA v. Bruen, the concealed carry case SCOTUS will be hearing on November 3rd.
Despite the jurisdictional barrier, New Jersey says that the petition should be held and an appropriate order then issued to dispose of the cert petition in light of the outcome of the Bruen case.
In other words, if the NYSRPA wins then New Jersey seems to be saying that the Russell cert petition should be “GVR’d” – The Petition should be granted, the decision of the lower court vacated, and the case remanded back to the lower court in light of the opinion published in NYSRPA v. Bruen.
Of course, if the NYSRPA loses then the appropriate Order would be to simply deny the cert petition.
We will have to wait for the Orders List to be issued from the long conference of 9/27 to see if the petition was denied, granted, or the decision to grant or deny is postponed for a future date.
The Orders List will be issued the following Monday, October 4th. This cert petition will appear as either granted or denied, if it appears on the list. If it does not appear on the Orders List for the long conference, and if it has not been granted already, then that means the justices are putting off a decision for a future conference in the 2021-2022 Supreme Court term.
That’s all for this article.
Until next time, thank you for reading, and please sign up for my newsletter at CaliforniaOpenCarry.com, and please subscribe to one of my video channels at:
List of Supreme Court Second Amendment Cert Petitions Pending/Granted/Denied.
