On September 25th the US Supreme Court will have its first conference of the 2017-2018 term where the fate of 857 cert petitions await. Five of those cert petitions involve the Second Amendment, either directly or indirectly.
It is called the “long conference” due to the number of unresolved cert petitions which have accumulated over the Court’s summer vacation.
Although “scheduled” for the long conference, the fate of 718 petitions is not a mystery. No brief in opposition to granting the cert petition was filed and not a single justice asked for a response to be filed. Barring any last minute requests from a justice for a brief in opposition to be filed, those 718 petitions are dead on arrival.
The Most Interesting Case
As an advocate of Open Carry and as someone who has been in Federal court these past six years fighting to overturn California’s Open Carry bans the cert petition of most interest to me is Dale Lee Norman v. State of Florida.
Contrary to popular belief, the Supreme Court does not believe its job is to correct the mistakes of the lower courts and clearly says so in Rule 10 of its published rules available on its official website free for everyone, including attorneys who write cert petitions, to read.
The justices of the Supreme Court view their primary role as one of resolving “splits.” A split occurs when two Federal circuits or state court of last resort decide a Federal question and come to a different conclusion.
Norman v. State is a case challenging Florida’s Open Carry ban and was a perfect candidate for Supreme Court review. The decision of the Florida Supreme Court created splits with every Federal circuit and state court of last resort. The decision also presents an important question which is a plus but rarely the reason SCOTUS grants a cert petition. Finally, the decision was a slap in the face to the Supreme Court. Sadly, that happens a lot in every area of the law.
Of the hundreds of thousands of court cases decided every year, only 8,000 or so will ever go on to file a cert petition with the Supreme Court and only one out of every hundred of those cert petitions will be granted by SCOTUS.
In short, the probability of a judge’s decision being overturned by the Supreme Court is the judicial equivalent of the probability of being hit by lightning. Slim to none, and without the unpleasant consequences. Given those odds, and lack of consequences if reversed, lower court judges feel free to thumb their noses at the High Court.
Unfortunately, Norman’s cert petition, despite of all the Rule 10 splits the decision created, did not even use the word “split.”
Norman’s cert petition was on the “dead list” of cert petitions which would have been automatically denied but was saved from certain death when an unknown justice asked that a brief in opposition be filed.
We will have to wait a bit longer to learn its fate.
State of Maryland Ban
Stephen v. Kolbe, et al v. Lawrence J. Hogan, Jr., Governor of Maryland, et al is an important Second Amendment case out of the Fourth circuit court of appeals which challenges a State of Maryland ban on semi-automatic rifles and ammunition magazines.
Unfortunately, SCOTUS denied a cert petition challenging a similar ban out of Illinois on December 7, 2015. The only change in the court has been the replacement of the late Justice Scalia (who chastised the Court for not granting that cert petition) with Justice Gorsuch. Only three of the sitting justices has ever filed a dissent to the denial of a cert petition in a Second Amendment case and it takes the vote of four justices to grant a cert petition. Couple this with a lack of a Rule 10 split and the odds of the cert petition being granted are between slim and none, and far closer to none than slim.
Better Chance of Being Granted Cert
Shaquille Montel Robinson v. United States has a better chance of being granted cert. This is another case out of the Fourth circuit court of appeals, a circuit which seems to be in competition with the Ninth circuit court of appeals for the most left-wing circuit trophy.
Contrary to pretty much every other court, including the 9th circuit court of appeals, the Fourth circuit court of appeals decided that if one is suspected of carrying a concealed weapon inside of a motor vehicle (in a state where it is legal to carry a concealed weapon inside of a motor vehicle) then that person is presumed to be both armed and dangerous and can therefore be searched without violating the Fourth Amendment.
Mr. Robinson is a Black man who was riding in the passenger seat with a white woman driver. He was searched under the pretext that he was not wearing a seatbelt.
I suspect that Justice Sotomayor will provide the fourth vote needed to grant the cert petition assuming that Justices Thomas, Alito and Gorsuch recognize that cases like this are likely their only chance to comment on the Second Amendment until President Trump fills another vacancy, such as a Justice Ginsburg or Justice Breyer vacancy.
Circuit Splits Case
James Hamilton v. William L. Pallozzi, et al. If this case did not raise a Second Amendment question then it is exactly the kind of case SCOTUS would grant. It has circuit splits and raises an important question.
The cert petition says it best, so I shall quote from it:
James Hamilton was convicted of non-violent Virginia felonies for which he served no jail time. Virginia restored all of Hamilton’s rights lost as a consequence of his convictions, including his right to possess firearms.
Hamilton has since been licensed as an armed guard and a firearms instructor, and he currently works as a Federal Protective Officer for the Department of Homeland Security. He has no record of violent conduct, and leads a stable family life. Nonetheless, Maryland, where Hamilton resides, forbids him from possessing firearms on account of his Virginia convictions.
The Third, Seventh, Eighth, and District of Columbia Circuits recognize that individuals may pursue as applied Second Amendment challenges to firearm dispossession laws. The First and Ninth Circuits are open to the concept. But the Fourth and Tenth Circuits bar such challenges. Accordingly, the Fourth Circuit below affirmed the dismissal of Hamilton’s as-applied Second Amendment challenge to Maryland’s firearm dispossession law.
The question presented is:
Whether, based on his personal circumstances, a law-abiding, non-violent individual may raise a Second Amendment challenge to the application of a law generally barring the possession of firearms by felons.
William Pallozzi, the Maryland State Attorney General, had filed a waiver to respond to the cert petition which would have meant the cert petition was dead on arrival were it not for an unknown justice requesting a response. The response is currently due on September 20th.
Cert Petition Already Granted
Rodney Class v. United States is not a Second Amendment case, yet. But if he wins his case before SCOTUS, the case goes back to the lower courts for him to argue his Second Amendment claim.
SCOTUS has already granted his cert petition. Oral argument is scheduled for October 4th.
I will let Mr. Class’ cert petition explain his case:
Petitioner is a retired veteran who resides in North Carolina. Petitioner has a concealed-carry firearm permit from North Carolina. During a May 2013 trip to Washington, D.C., Petitioner left his lawfully-owned firearms secured out-of-sight in bags inside his locked vehicle, which he parked in a publicly-accessible parking lot on Maryland Avenue, S.W., about 1000 feet away from the foot of the U.S. Capitol Building.
Unbeknownst to Petitioner, the parking lot was considered part of the Capitol Grounds, where all weapons are prohibited pursuant to 40 U.S.C. § 5104(e).
No signs indicated that the lot was part of the Capitol Grounds or that weapons were prohibited.
A police officer looked into the cab of Petitioner’s vehicle and saw what she mistakenly believed was a gun holster … When Petitioner returned to his car, he was arrested, and his vehicle was searched. The object the officer saw was not a gun holster, but the search revealed three firearms that Petitioner had stored out-of-sight, as well as several knives.
Petitioner filed numerous motions to dismiss the indictment, arguing inter alia that his storage of lawfully-owned weapons in his locked vehicle was protected by the Second Amendment.
Mr. Class would eventually plead guilty and was told by the Federal district court judge that he could appeal his guilty plea if he thought that his plea was somehow unlawful.
The District of Columbia circuit court held that a guilty plea inherently waives all constitutional claims.
Mr. Class filed a cert petition on September 30, 2016. His cert petition was granted on February 21, 2017. On July 17, 2017, President Trump’s acting solicitor general filed his brief on the merits wherein he argues, on behalf of the government, to affirm the holding of the circuit court as did the Obama administration in its brief in opposition filed on December 20, 2016.
So much for “draining the swamp.”
Saving The Worst Case For Last
Jeff Silvester, et al v. Xavier Becerra, Attorney General of California. I have saved the worst case for last.
This is a CalGuns.nuts and Second Amendment Foundation case.
If you are unfamiliar with the CalGuns Foundation or the Second Amendment Foundation then let me enlighten you. These groups, like the National Rifle Association, really hate Open Carry. So much so they spent the better part of a decade arguing to uphold California’s Open Carry bans in the 9th circuit court of appeals, and lost.
The individual plaintiffs, Jeff Silvester and Brandon Combs both have concealed carry permits. They argued that somehow this makes them special. They did not challenge California’s ten day waiting period to purchase a firearm. Indeed, they told the 9th circuit court of appeals they have no problem with a 30 day waiting period. Instead, they argued because they have concealed carry permits they should not have to wait a full ten days to purchase a firearm.
The court of appeals said that the plaintiffs agreed with the California Attorney General that a waiting period enhances public safety. The court of appeals then concluded that the waiting period does not impose a substantial burden on the Second Amendment.
The plaintiffs filed an en banc petition which was denied. They then filed their cert petition on September 1, 2017.
We do not know whether or not the State of California is going to file a brief in opposition. If it doesn’t then don’t expect for any justice to ask for a response.
I sometimes regret not studying psychology. I have long suspected that a substantial motivation for those who think that a government issued permission slip should be required to exercise what they claim is a Second Amendment right stems from deeply rooted childhood inadequacies.
They seem to think that a concealed carry permit somehow makes them special. It does, but not in the way they think.
Memo to lawyers. Don’t go into court and argue that a law is constitutional for every other law-abiding citizen and then argue that your clients are special and should be exempt from the law.
Cert Petition Statuses
In any event, we should know this month or next whether or not the current justices are going to grant any cert petition where the Second Amendment is directly or indirectly at issue.
If they do not then we will have to wait until there is another vacancy on the Supreme Court and hope that it is President Trump who fills that vacancy. Justice Kennedy has reportedly told prospective clerks he has interviewed that he is considering retirement at the end of the current term in June of 2018.
His retirement would give us the fourth vote required to grant a cert petition which we have heretofore been lacking. However, three weeks ago the head of the U.S. Senate Judiciary Committee said that he no longer expects a vacancy this term.
We should know by January. If Justice Kennedy has hired his full complement of clerks for the 2018-2019 term then we’ll know he isn’t going to retire anytime soon.
Justice Ginsburg is 84 years old and certainly shows her age but she has left no doubt that she is not going to retire.
Justice Breyer, another opponent of the Second Amendment, is 79 years old. Two years ago, Justice Breyer reportedly said “I guess at some point I will retire. You want to know when. I don’t know. I will figure it out at some point. How do I know? Normally it is a personal decision … and I will make it personally at some point. As long as I am doing my job.”
Two years have gone by and Justice Breyer is still on the job.