For over ten years, lawsuits challenging various gun-control laws have invariably lost in the lower courts. Many of those lost cases filed a cert petition asking the US Supreme Court to hear their appeal, but like so many wallflowers, the justices barely glanced their way, if they bothered to even look in their direction.
With empty dance-cards and denied cert petitions, these Second Amendment wallflowers were denied entrance to the marble halls of the Supreme Court and then sent on their way.
No dance for them.
The Bill of Rights was enacted on December 15, 1791. In all of that time, the US Supreme Court has granted only two Second Amendment cert petitions which decided the cases on the merits.
There have been a couple of “GVRS” (Grant-Vacate-Remand) these past ten years where the Supreme Court Grants the cert petition for the purpose of Vacating the decision of the lower court and Remanding the case back to the court of appeals (or state high court of last resort) for a do-over but only two Second Amendment cases, District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), have been argued and decided on the merits.
The last “GVR” in a Second Amendment case was on March 21, 2016, which occurred shortly after the death of Justice Antonin Scalia who was the author of the Heller decision which held that the Second Amendment guarantees an individual right to keep and bear arms unrelated to membership in any militia.
That case, Caetano v. Massachusetts, involved a criminal appeal by a homeless woman who had been convicted for possessing an electric stun-gun in violation of a state law prohibiting the possession of stun-guns in Massachusetts. Incredibly, the State of Massachusetts argued that her conviction should be affirmed because she wasn’t prohibited from obtaining a license to carry a handgun.
The Massachusetts high-court (Supreme Judicial Council) had unanimously held that electric stun-guns were not protected by the Second Amendment because they did not exist in 1791 when the Second Amendment was enacted.
The decision in District of Columbia v. Heller explicitly stated that all bearable arms, prima facie fall within the scope of the Second Amendment and dismissed as “bordering on the frivolous” the argument that the Second Amendment protected only arms which existed in 1791.
What the US Supreme Court could have done (and should have done) was to hold that electric stun-guns are arms protected by the Second Amendment. Instead, the Court GVR’d the case back to the Massachusetts high court for a do-over.
The conviction of Ms. Caetano was vacated, and the case dismissed. In a different case, the Massachusetts high court eventually held, unanimously, that stun-guns are arms protected by the Second Amendment.
And so it was no surprise that when Justice Gorsuch took the seat vacated by Justice Scalia that things did not change. Justices Thomas and Scalia had written dissents to the denial of a few Second Amendment cert petitions, and Justice Thomas and Justice Scalia dissented to the denial of the cert petition in Peruta v. San Diego. We had a new justice, but as far as the Second Amendment was concerned, nothing had changed. There were not four votes to grant a Second Amendment cert petition to be decided on the merits of the case, and if there were not four votes to grant, then there would not be five votes to win.
But then D.C. Court of Appeals Judge Kavanaugh was elevated to the US Supreme Court to fill the vacancy caused by the departure of Justice Kennedy.
It takes the vote of four justices to grant a cert petition for the purpose of deciding a case on the merits. It takes the vote of five justices to GVR a case or to decide a case on the merits, and it takes the vote of six justices to issue a per curiam (unsigned) opinion, the latter of which was issued in Caetano v. Massachusetts.
NYSRPA, et al v. NYC, et al
You have no doubt heard that the cert petition was granted in New York State Rifle and Pistol Association, et al v. City of New York, et al. New York City tried to moot the case and will no doubt continue to try to moot the case up to, and including, oral argument on the merits of the case which will likely take place in October or November of this year.
NYSRPA, et al v. NYC, et al is the first Second Amendment case the Supreme Court will decide on the merits in over ten years.
The First Two Wallflowers of the Current Term
But something else has happened as well. The justices, or at least one of them, are taking a closer look at cert petitions which in years past would have been dead on arrival.
Two of these cases are Mance, et al v. Bar, et al and Pena, et al v. Horan. The first is out of the 5th circuit court of appeals and asks the question, “[W]hether prohibiting interstate handgun sales, facially or as-applied to consumers whose home jurisdictions authorize such transactions, violates the Second Amendment and the equal protection component of the Fifth Amendment’s Due Process Clause?” The second case (Pena) is out of the 9th circuit court of appeals and asks, “[W]hether California’s “Unsafe Handgun Act,” Cal. Penal Code § 31900 et seq., violates the Second Amendment by banning handguns of the kind in common use for traditional lawful purposes?”
Prior to the elevation of Justice Kavanaugh to the Supreme Court, these two cases might have, at most, “won” dissent to the denial of their cert petitions, assuming they managed to survive being placed on the SCOTUS “dead list.” The “dead list” is where most cert petitions are placed. They are never reviewed in the private conference of justices, they are killed without ever having been voted on by the justices.
Neither of these cases has been rescheduled or relisted. They are being held. Typically a case is held for the disposition of some related case, either a decision on the merits in that other case or the granting or denial of the cert petition from that other case.
It could also be that one or more of the justices are writing a dissent to the denial of the granting of the cert petition but more often than not such cases are simply relisted multiple times while the justice writes his dissent (it takes only one justice to relist a case).
Two More Wallflowers?
Much to my surprise, there are two additional cert petitions which a betting man would have bet his house on that they would have gone straight to the SCOTUS dead list.
Shane Cox v. United States and Jeremy Kettler v. United States are appeals of criminal convictions arising out of their reliance on a Kansas State law, “The Kansas Second Amendment Protection Act” which generally exempts all firearms or firearm accessories within Kansas from any federal law or regulation, including any federal registration program.
Needless to say, the Federal government did not care what laws the Kansas legislature enacted, and as you no doubt guessed, the government of Kansas hid beneath its collective bed when it came time for them to defend their law.
A Federal jury convicted Mr. Cox of possessing an unregistered short-barreled rifle and an unregistered silencer, as well as transferring unregistered silencers. In the related case of Mr. Kettler, he was convicted of possessing an unregistered silencer (Mr. Kettler bought the silencer from Mr. Cox).
Both cases ask if short-barreled rifles and silencers (Cox) or silencers (Kettler) are arms protected by the Second Amendment. The position of the Trump administration is that short-barreled rifles are not arms protected by the Second Amendment and that silencers are not arms, they are accessories, and the Second Amendment does not protect accessories to firearms.
Here are the two questions presented in Mr. Cox’s cert petition:
- Did the district court deny Mr. Cox his due process right to present a defense when it precluded Mr. Cox from arguing to the jury that his reliance on the Kansas Second Amendment Protection Act could be considered an affirmative Defense?
- Are short-barreled rifles and silencers protected by the Second Amendment?
Here are the three questions presented in Mr. Kettler’s cert petition:
- Whether the National Firearms Act of 1934, upheld in Sonzinsky, continues to be a constitutional exercise of Congress’s taxing power when the justifications for that decision have significantly eroded over the last 82 years?
- Whether the Second Amendment protects firearm accessories such as sound suppressors?
- Whether the tax imposed by the National Firearms Act, targeting the exercise of a Second Amendment right, violates the rule of Murdock v. Pennsylvania, 319 U.S. 105 (1943) and Cox v. New Hampshire, 312 U.S. 669 (1941)?
Both the Cox and Kettler cases have been fully briefed at this “cert stage.” Cox had been scheduled for the May 30th private conference of justices where the justices would vote on whether or not to grant his cert petition, assuming that his cert petition had managed to escape the SCOTUS dead list. Mr. Kettler’s cert petition has been scheduled for the June 6th private conference of Justices.
And then, much to my surprise, Mr. Cox’s cert petition escaped being placed on the SCOTUS dead list. His cert petition has been rescheduled to a future conference at some, as yet, unspecified date.
That is almost as big a development as SCOTUS granting a Second Amendment cert petition.
For these past ten years, Second Amendment cert petitions like Mr. Cox’s and Mr. Kettler’s went straight to the SCOTUS dead list. They were not rescheduled. They were not relisted. They were not GVR’d. These types of cert petitions were denied without ever having been discussed by the justices, let alone voted on.
Statistics and history are still against Mr. Cox and Mr. Kettler, but perhaps they can take some cold comfort that they made it further than others, or at least Mr. Cox has at this point. Ask me on June 10th when the Orders list of the June 6th private conference of justices is released.
Keep in mind that not everything has turned into milk and cookies since the elevation of Justice Kavanaugh to the Supreme Court. Here are a few cert petitions since the beginning of this term (October 1, 2018) which should have been granted but were instead denied.
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 a 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 – Cert denied, November 5, 2018.
Christos Koutentis v. New York City Police Department, Licensing Division (handgun license revocation) – 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 a felon in possession of firearms – as an applied challenge). – Cert denied January 14, 2019.
Lyanne Lemeunier-Fitzgerald, Petitioner v. Maine – Fourth Amendment (refusal to consent) – BIO Requested on November, 16, 2018. Due December 17, 2018. – Cert denied January 14, 2019.
William Benjamin Brown v Andrew Mansukhani, Warden (prisoner pro se, handwritten petition, Fourth Amendment, and more) – Cert filed on June 20, 2018. – Cert denied January 22, 2019.
Eduardo Gomez v. Illinois – (concealed carry in an automobile, 4th Amendment) – Cert filed on December 20, 2018. – Cert denied on February 19, 2019.
Curtis John Mulhern, Petitioner v. Pennsylvania – (2nd Amendment) – Cert filed July 29, 2018. DISTRIBUTED for Conference of 2/22/2019. – Cert denied on February 25, 2019.
Benjie Earl Wright v United States – (Fourth Amendment, concealed carry) – Cert Filed November 27, 2018. DISTRIBUTED for Conference of 2/22/2019. (lots of relists with this one). – Cert denied on February 25, 2019.
Suzan Evans, Individually and as Wife and Next of Kin of Scott Evans, Deceased, Petitioner v. United States – (2nd and 4th Amendment). – Cert filed September 7, 2018. DISTRIBUTED for Conference of 2/22/2019. – Cert denied on February 25, 2019.
Brian Anderson v. Colorado – Cert filed on December 13, 2019. Colorado uses vacated convictions to enhance sentences, which SCOTUS has said is unconstitutional in 2017. If this prisoner pro se petition is granted and he prevails then the 2017 decision will become retroactive. Response Requested on February 19, 2019. (Due April 24, 2019). DISTRIBUTED for Conference of 5/23/2019. Cert DENIED on 5/28/2019.