The Second Amendment Cases the Supreme Court Doesn't Want to Hear


The Supreme Court late last month declined petition to take up more Second Amendment cases. A news release I received today from the Michel and Associates law firm (that does not seem available yet on its web site dedicated to gun law) explains what was at stake. It also discusses other Second Amendment cases that people have tried, and failed, to take all the way to the Supreme Court since 2008's Heller case created a brand-new landscape for weapons possesion law:

On January 17, 2012, the Supreme Court of the United States declined to accept and review People v. Delacy…

In his Petition for a Writ of Certiorari, lawyers for Mr. Delacy asked the Supreme Court to decide whether language from its 2008 opinion, District of Columbia v. Heller, 554 U.S. 570 (2008), concerning "presumptively lawful" restrictions on the right to keep and bear arms allowed courts to simply hold restrictions on the Second Amendment rights of those with certain misdemeanor convictions constitutional without applying any level of heightened judicial scrutiny. The Delacy case also touched on what level of judicial scrutiny should apply to an Equal Protection challenge asserting the government is creating discriminatory classifications that deprive those so classified of their Second Amendment rights.

Even though the Supreme Court requested a response to the Delacy petition from the government in October 2011. Delacy ended up being another in a line of recent Second Amendment-related cases which the Supreme Court declined to accept for review.

Certiorari was also denied on the same day as Delacy in Lowery v. United States.The Lowery case sought review of whether the right to keep and bear arms as set forth in Heller applied retroactively to a person convicted of possessing a handgun in his home in violation of the very restriction struck down as unconstitutional in Heller.

Other Second Amendment-related cases recently denied review by the Supreme Court include Williams v. State (Maryland)U.S. v. Masciandaro, and Winters v. Willis.

Williams v. State (Maryland)….asked the Supreme Court to decide whether the Second Amendment protects a right to carry or transport a registered handgun outside the home. Mr. Williams was appealing his conviction for possessing a handgun in public without the required state permit allowing him to do so.

United States v. Masciandaro…involved a man convicted of violating the federal prohibition on carrying or possessing a loaded weapon in vehicles in National Parks after he was found asleep in his vehicle with a loaded handgun in a national park. He sought review from the Supreme Court of whether that prohibition violates the Second Amendment right to bear arms; asking the high court, like the petitioner in Williams, whether the right extends beyond the home.

Willis v. Winters….involved a group of Oregon sheriffs asking the Supreme Court to clarify whether they could disregard an Oregon State Supreme Court decision requiring them to issue licenses to carry firearms to medical marijuana patients, which would arguably make them violate federal law. One question that potentially would have had to be resolved – as with several other cases seeking review from the Supreme Court – was whether there is a right to carry firearms outside the home for self-defense. Willis also could have potentially had a wide-reaching effect regarding who is considered an unlawful user of or addicted to a controlled substance (a disqualifier for firearm possession under federal law).

While you might think these decisions on the Court's part to not hear these Second Amendment cases means it's reluctant to reconsider the Amendment at all, that's not quite right:

Despite the of certiorari denials in all the aforementioned Second Amendment cases, the fact that the Supreme Court has been requesting responses in these cases shows the Justices are paying unusually close attention to the Second Amendment issue. Of the roughly 8,000 petitions for review filed with the Supreme Court every year, only in a few hundred cases does the Court request a response from the opposing party. When the Court requests a response brief, it is a strong sign that the Court is interested in hearing argument in that case. And, such a request increases the probability that the Court will grant oral argument by roughly 9 times, from 0.9% to 8.6%….

The fact that the Supreme Court requested a response in all these cases suggests the Court is interested in further clarifying the scope of Second Amendment rights after Heller and McDonald v. City of Chicago…but is searching for the right case vehicle to do so.

The Court has two cases awaiting its consideration that might finally mark the return of the Second Amendment to the Supreme Court since McDonald:

Perhaps one of the two remaining Second Amendment cases pending before the Court that we are aware of (United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011), petition for cert. filed, No. 11-7200 (Nov. 2, 2011) (a challenge to federal law prohibiting gun possession by illegal aliens) or United States v. Booker, 644 F.3d 12 (1st Cir. 2011), petition for cert. filed, No. 11-6765 (Oct. 3, 2011) (a challenge to federal law prohibiting gun possession by persons convicted of domestic violence)) will become the case that settles some of the issues that remain outstanding in the wake of the Heller ruling. 

Indeed, Heller and McDonald raise so many questions about the reach of and proper standard of review of laws that infringe on the Second Amendment that a revisit is certainly in order, and I hope one happens soon, and the right way. I've written about the newly wide-open field of Second Amendment law here and here (this latter specifically mentions Willis v. Winters, and another burgeoning case in federal court about whether medical pot card holders can be denied Second Amendment rights, Wilson v. Holder).

An interview by me with Heller and McDonald lawyer Alan Gura on the immediate post-Heller shape of Second Amendment law. 

Reason's gun archives

I wrote a book about the Heller case, Gun Control on Trial.

Damon Root from last week on why the Second Amendment does too protect us from states and localities.