Second Amendment Countdown to October 1st

On October 1st, 2019, the first day of the new US Supreme Court term, the nine justices of the United States Supreme Court will meet in a private conference where the fate of a baker’s dozen of Second Amendment appeals to SCOTUS lie in the balance.

On one side of the scale, SCOTUS will place its feather of bureaucracy, and on the other side of the scale will be placed, in turn, each cert petition asking for the high court to please, pretty please with sugar on top, grant the petition and review the case.

Of the 1,709 cases scheduled to be “discussed” that day, the fate of nearly all of them has already been sealed. On the following Monday morning, October 7th, SCOTUS will publish its list of orders denying the cert petitions in all but a hundred or so cases. And in that 100 or so cases, perhaps five or ten will ultimately be deemed worthy of SCOTUS review. In nearly every year from 2006 through 2018, those cases which had been fully briefed by September and “discussed” in the first conference of October had the best odds of being granted cert. Last term, there were only 5 cert petitions granted in the first conference of the term. That was down from 9 the term before and down from an average of 10.1 cert petitions granted in the first conference over the 2006-2018 period.

Second Amendment "Minuteman" by sculptor Henry Hudson Kitson (1863-1947), dedicated April 19, 1900.
This file is licensed under the Creative Commons Attribution 2.0 Generic license.

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There have already been 40 cert petitions granted which will be decided this term. The average number of cases decided over this period has been 74.3. A period when the Court saw 8-10 thousand petitions filed each year and denied all but 63-81 of them. One thing is certain, SCOTUS is not going to hear every single one of the Second Amendment cert petitions. The best that we can realistically hope for is that SCOTUS decides one Second Amendment case and then grants, reverses and remands (GVR) the rest of the Second Amendment cert petitions.

The ones that will survive, for the moment at least, are easy to spot. Those are the cert petition where the respondent (the winning party in the court below) has been asked by SCOTUS to file a response to the cert petition and the response was not filed in time for the October 1st conference. In these cases, the justices won’t even look at the cert petitions or the responses until the response (Brief In Opposition) has been filed and the case will not be reviewed in a conference (if at all) until the Justices have been given ten days to review the petitions and briefs in opposition.

The cert petitions that are dead on arrival are even easier to spot. Those are the cases in which a cert petition was filed but no Brief In Opposition was filed and SCOTUS did not request a response.

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By the way, it only takes one justice to request a response and it only takes one justice to hold a case over to the next conference.

And just to make things more interesting, in recent years SCOTUS has rarely granted a cert petition unless the petition has been discussed in a second conference, at a minimum. The one Second Amendment cert petition which has been granted this term, NYSRPA v. NYC was discussed in three conferences before being granted.

FYI, Justice Kagan has said that very little actual discussion occurs during these “Discuss” conferences and this frustrates her. She says that the only real discussion to speak of occurs at the end of the week after the oral argument has taken place in the cases which were granted cert and argued before the court.

Supreme Court Second Amendment Countdown – 2019

In six of these Second Amendment cases, the respondent filed a waiver to reply and not a single justice requested a response. These cert petitions are D.O.A. and will appear among the list of the dead cert petitions the following Monday.

Of the seven Second Amendment cases which are not dead on arrival, four were held over from last term. That is kind of rare but for a Second Amendment case, it is unheard of. These four cases involve the ban on the interstate sale of handguns through Federally licensed firearms dealers, California’s ever shrinking roster of handguns approved for sale by the government, a challenge to New Jersey’s may-issue handgun carry licensing scheme and a challenge to Massachusetts may-issue handgun carry licensing scheme. Each of these four has survived at least one “discuss” conference but has not been rescheduled for a conference this term, at least not yet.

Two of the remaining three Second Amendment cases are challenges to New Jersey’s handgun carry licensing scheme. The final petition (Cook v. US) “involves a threshold question: Whether a statute that impinges on the Second Amendment right to bear arms is subject to facial vagueness challenge the same as statutes that impinge on other individual constitutional rights.” And, “If this Court declines to consider these constitutional questions, there is an additional question: Should the Court hold this petition in abeyance pending the resolution of Rehaif v. United States (17-9560) and/or N.Y. State Rifle & Pistol Ass’n v. City of New York (18-280)?”

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Rehaif won his vagueness challenge, and if Cook likewise prevails in that argument then SCOTUS is unlikely to answer the Second Amendment question. I like this cert petition. However, this case involves drugs and guns. SCOTUS has granted cert petitions in the past which involved guns and drugs but not because of the Second Amendment. Although this case (Cook) argues that this is a case of national importance (which weighs in its favor) it does not identify a circuit split (which weighs more heavily against it). Unfortunately, we are soon going to see that Drugs plus Guns plus Second Amendment minus a Circuit Split equals “Cert denied.”

There are also a few Fourth Amendment cert petitions which involve concealed carry. The Heller decision made it quite clear that concealed carry is not a right but one can be carrying a concealed weapon and still be protected by the Fourth Amendment. In any event, these petitions argue, more or less, that concealed carry is a right. We’ll see.

Finally, for now, there are three cert petitions in the pipeline. I can’t say for certain that they will all raise Second Amendment questions but given that one challenges a Massachusetts law proscribing the sale, transfer, and possession of certain semiautomatic “assault weapons” and “large-capacity” magazines, another challenges Maryland’s handgun carry licensing scheme, and the third challenges the State of Illinois’ prohibition on issuing concealed carry licenses to most non-residents, it is a fair bet that each of these will state a Second Amendment question in their cert petitions. The first two cert petitions are due at the end of this month (September) the third is due in October.

Links to these and other cert petitions I am tracking can be found at the bottom 1/3 of my California Open Carry lawsuit status page at my website.