Second Amendment “Super Friday” at the Supreme Court

The Supreme Court announced its decision in New York State Rifle & Pistol Association v. City of New York, No. 18-280, earlier today. As foreshadowed at oral argument, the Court found that the City’s post-petition rule change rendered the matter moot. Justice Kavanaugh filed a concurring opinion, and Justice Alito dissented. These two opinions provide some insights.

In his concurrence, Justice Kavanaugh agreed that the matter was moot, but he took the time to note that he “share[d]” the dissent’s “concern that some federal and state courts may not be properly applying Heller and McDonald.” And significantly, he concluded that “[t]he Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”

Justice Alito’s dissent conceded that the rule change had granted the petitioners “most” of the relief they had requested, but found some issues to still be live. Notably, it wasn’t clear that licensed gun owners could stop for refreshments or supplies on their way to shooting ranges, and there was still the possibility of a claim for money damages (even though the complaint had not sought that relief). The more insightful part of the opinion—at least for purposes of the Second Amendment—was the substantive analysis in section IV. Justice Alito broke this down into two parts. The first part framed the issue as one of historical precedent and whether there was “evidence of laws in force around the time of the adoption of the Second Amendment that prevented gun owners from practicing outside city limits.” Not surprisingly, there was not. In the second part of his analysis, Justice Alito looked to the strength of “the City’s showing that its travel restriction significantly promoted public safety.” 

Three of the NYPD’s justifications were pertinent: 

(1) “discourage[ing] licensees from taking their guns outside the home”;

(2) “prevent[ing] a person who is taking a gun to a range from using it in a fit of rage after an auto accident or some other altercation”, and; 

(3) making it easier to verify that a licensed gun owner was indeed on their way to a target range, vis-à-vis doing something else. The dissent rejected these justifications, in no small measure because “a reasonable opportunity to practice is part of the very right recognized in Heller,” so the claimed interest in limiting the ability to do that was “a repudiation of part of what we held in that decision.” Moreover, many shooting ranges in New Jersey and Long Island are actually closer to many City residents than are the ranges in NYC, so the notion of minimizing the chances of a “fit of rage” during travel was “dubious.” And finally, there was very little in the record that actually supported the proposition that police officers would have difficult verifying that licensees were traveling to ranges outside the City.

Two things really stand out in this analysis. The first is the lack of any reference to tiered standards of scrutiny. Nowhere did Justice Alito make reference to “strict” or “intermediate” scrutiny or to “compelling” or “important” governmental purposes. Rather, Justice Alito focused on the strength of “[t]he City’s public safety arguments” and the degree to which they were substantiated. It reminds one of the approach that Judge Posner took in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012). The second thing that stands out is who joined what. Justices Gorsuch and Thomas both joined Justice Alito’s concurrence, but—significantly—Justice Thomas did not join the second part of section IV. In other words, Justice Thomas’s analysis began and ended with the question of historical precedent.

Shortly after announcing its decision, the Court listed ten pending certiorari petitions for conference this upcoming Friday, May 1. Six of those cases concern carry and/or carry-related issues. Since the NYSRPA case itself concerned the general issue of how local governments could restrict the use of guns in public places, it makes sense to take a look at these petitions first.

Three of the six petitions concern New Jersey’s “justifiable need” standard for obtaining a permit to carry a handgun. In application, this is one of the very most restrictive licensing standards in the country. The first petition, Rogers v. Grewal, is an NRA-backed case that has been pending before the Court since December 2018. This one came out of the Third Circuit, which summarily affirmed a district court’s order of dismissal on the authority of Drake v. Filko, 724 F.3d 426 (3d Cir. 2013). The second, Cheeseman v. Polillo, is a crowdsourced case that is independent of any interest or advocacy groups. It came out of the New Jersey state court system. Finally, there is Ciolek v. New Jersey, a case prosecuted by a pro se attorney, which also came out of the New Jersey state court system. The New Jersey “need” standard would be a good one for the Court to review: Its restrictive parameters are codified in statutory law, and the Supreme Court of New Jersey has repeatedly upheld it. It would be relatively difficult for New Jersey officials to render a New Jersey case moot, were the Court to grant review.

The next petition is Gould v. Lipson, which challenges policies of imposing restrictions on licenses to carry handguns in Boston and Brookline, Massachusetts. This case comes out of the First Circuit. It has the benefit of a well developed factual record, but the handicap of underlying policies that are easily changed. If the Court grants review, the police chiefs of Boston and Brookline could render the case moot at the stroke of a pen. Like Rogers, this one is NRA-backed.

The petition in Malpasso v. Pallozzi doesn’t have this problem. It concerns Maryland’s “reason” requirement for a permit to carry a handgun, which (like New Jersey) is also codified into law. This case comes out of the Fourth Circuit. It is also NRA-backed.

Finally, there is Culp v. Raoul, which concerns the unavailability of Illinois concealed carry licenses to most nonresidents of Illinois. It comes out of the Seventh Circuit, and the backer is the Second Amendment Foundation (SAF). The potential drawback with this one is that it doesn’t squarely present the issue of carry—since Illinois has licensed its residents to carry guns on nondiscretionary terms since the Seventh Circuit decided Moore.

And what of the other four? Two concern “assault weapon” bans. Wilson v. Cook County concerns a “conventional” ban on “assault weapons”—that is, a list of design features that, once associated with a semi-automatic firearm, make the firearm a prohibited “assault weapon.” This one comes out of the Seventh Circuit and is backed by SAF. The background to the petition in Worman v. Healey is a little more involved. It concerns an “enforcement notice” that the Massachusetts Attorney General issued to re-interpret the state’s ban on “assault weapons” to include (what the Massachusetts Attorney General says are) “copies and duplicates” of prohibited guns. This case, NRA-backed, challenges both the state’s “assault weapon” law and the extension of that law to reach additional guns. It comes out of the First Circuit.

The final two petitions both concern restrictions on the sale of guns. Mance v. Barr challenges the aspect of the (federal) 1968 Gun Control Act that prohibits individuals from purchasing handguns outside their states of residence. The plaintiffs live in Washington, D.C., which does not have any gun stores. This SAF-backed case comes out of the Fifth Circuit. Finally, Pena v. Horan, which is also a SAF case, concerns California’s requirement that new handguns incorporate “microstamping” technology. It comes out of the Ninth Circuit.

If (if) the Court is going to grant certiorari in one or more of these cases, then the question is: Which case(s) will it review? I can only guess, but my guess—not uneducated—puts Rogers, Cheeseman and Malpasso at the top of the list. I get to this conclusion because (in my opinion) the most significant area of dispute among the lower courts is the question of the scope of the right to bear arms. The Seventh Circuit and the D.C. Circuit have found that the right to bear arms protects the right of ordinary citizens to carry guns for their protection, while the First, Second, Third and Fourth Circuits have found broad preclusions on carrying guns constitutional. (The Ninth Circuit, for its part, still hasn’t squarely answered the question, notwithstanding years of litigation.) If the Court is going to grant review on this issue, then it only makes sense to grant review in a case where the issue is squarely presented, and the law is fixed and definite, rather than being readily subject to change. But, as with anyone else making a predictive judgment, I really don’t know. We’ll have to wait until the Court issues its order list at 9:30 a.m. on Monday, May 4 for further guidance.

And finally, I’ll close with a few disclosures. I am counsel in Cheeseman and Gould, and I submitted amicus curiae briefs in Rogers, as well as in NYSRPA. I was also counsel in Moore and Drake, which are both key (and divergent) authorities that the decisions in many of the current petitions relied upon. Keep your fingers crossed for the next chapter.

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