Those of us who defend the right to keep and bear arms have high hopes that the then Circuit Judge Kavanaugh who wrote his famous dissent in Heller II will be the same defender of the Second Amendment now that he has been elevated to an associate justice on the United States Supreme Court.
As my readers know, it takes the vote of four justices to grant a cert petition and without four votes, the cert petition is dead. Of the nine justices currently on the court, only two have ever filed dissents to the denial of Second Amendment cert petitions, Justices Thomas and Gorsuch.
Two Is Less Than Four, Three Is More Than Two
If Justice Kavanaugh files a dissent then we’ll know we have at least three votes to grant a Second Amendment cert petition, and if we have three votes then that leaves us just one vote shy of the Supreme Court hearing another Second Amendment case and arguing it on the merits. That has happened only twice before, in 2008 and 2010.
The current Supreme Court term began on October 1st of last year. As of this writing, three and a half months later, no justice has filed a dissent to the denial of a Second Amendment cert petition this term.
Below are links to ten cases in which the cert petition made a Second Amendment argument. All of these cases were denied without a single justice filing a dissent to their denial.
Three of them were concealed carry cases and a fourth involved drugs and guns and so there is no real surprise in those petitioners having their cert petitions denied. And one can certainly argue that each of these cert petitions suffered from one or more obstacles to the granting of cert in its way, such as no SCOTUS Rule 10 (circuit) split, but the Peruta v. San Diego concealed carry case got two justices to file a dissent to the denial of cert and that case suffered from multiple defects.
Where Cert Petitions Go to Die
On Friday, January 18th, the justices have their last conference before going on vacation for a month. In this conference, the justices will theoretically decide which of approximately 150 petitions scheduled for review during that conference they are going to grant, which petitions they are going to deny, and which petitions they are going to postpone until their next private conference on February 15th.
In reality, nearly every one of those 150 petitions will be denied without a single justice in support of granting the cert petition. If any of the cert petitions is granted then we will likely hear about it that afternoon. A few of the petitions might be relisted to the February 18th conference but the rest will be listed as denied on the Orders List released by the court the following Tuesday morning at 9:30 AM (ET).
One of those cases scheduled for this Friday includes a Second Amendment challenge. The case has survived two conferences without being denied despite its vehicle problem (the plaintiffs don’t challenge the state law carry or premises permits) not to mention the lack of a SCOTUS Rule 10 split.
NEW YORK STATE RIFLE & PISTOL ASSOCIATION, Inc., et al., v. City of New York, New York, et al – Cert Filed 9-4-2018 – (transportation of handguns out of NYC with only a premises permit). DISTRIBUTED for Conference of 1/18/2019.
Here are the links to the Second Amendment cases which have been denied this term, and denied without a single justice filing a dissent to their denial.
John Cassidy, Petitioner v. Massachusetts 18-191 (felony convictions for in-home possession of firearms legal in Texas but not Massachusetts.) – Cert denied Oct 1, 2018.
Cash Jerome Ferguson-Cassidy, v. City of Los Angeles, California, et al (police shooting) – Cert denied Oct 1, 2018.
Donte Timothy Bacon v United States (obliterated serial number on handgun) – Cert denied, November 5, 2018.
James Rothery, et al. v. County of Sacramento, et al., – Concealed Carry – 09-16852 – En Banc Petition Denied – Cert Filed 7-26-2018 (concealed carry) – Cert denied, November 5, 2018.
Christos Koutentis v. New York City Police Department, Licensing Division (concealed carry) – Cert denied on November 13, 2018.
Eduardo Salgado v. California (concealed carry) – Cert denied on December 3, 2018.
Kevin Wayne Vanover and Meredith Ann Yates v United States (drugs and guns) – Cert denied on December 3, 2018.
GARY DRESSLER, v. BRADFORD RICE, ET AL (Open Carry/Police Immunity) – Cert denied January 7, 2019.
United States v. Michael Albert Focia – Convicted for dealing in firearms without a federal firearms license, in violation of 18 U.S.C. § 922(a)(1)(A), and selling firearms to unlicensed residents of states other than his own without having a license to do so, in violation of 18 U.S.C. § 922(a)(5). Cert denied January 7, 2019.
Barry Michaels v. Matthew G. Whitaker, Acting Attorney General, et al. – Cert Filed June 27, 2018 (challenge to Federal ban on felon in possession of firearms – as applied challenge). – Cert denied January 14, 2019.
