Second Amendment

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.

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  4. Why they don’t want to hear it? Is it lawful not to hear the second amendment cases?

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  6. Living as they do in or near D.C., I wonder how many of the justices are following Emily Gets Her Gun. I bet the D.C. city council is wondering the same thing.

    1. Yeah….just watched the video of her testifying before the DC Judiciary committee. That mealy mouthed phil mendelson makes my hair stand up. His excuses range from ‘people dont really want guns’ to ‘those are market conditions’. Smarmy fuck.

  7. The Second Amendment Cases the Supreme Court Doesn’t Want to Hear

    Shit man, I wish I had a case load of 75 or so cases a year. But hey, you can’t expect too much from SCOTUS. Those $50,000.00 speaking engagments take up a lot of time.

    1. Admittedly Troy, your cases probably didn’t require 100 page opinions. Then again, you didn’t have 2 or 3 starry-eyed serfs from top-15 law schools to do all of the writing. Seriously, why does every opinion from these guys these days read like Ulysses? Especially when you go back and compare them to 19th and early 20th century opinions. Why does it take three times as much ink to say the same damned thing?

      1. your cases probably didn’t require 100 page opinions.

        Regarding the 2A, the opinion doesn’t need to be anywhere near 100 pages – unless you’re trying to avoid actually having an opinion.

      2. Obfuscatory sophistry to avoid the obvious meaning of black letter Constitutional law takes a lot of words! How else could the court decide that not growing wheat was interstate commerce or that drug prohibitions were in the Constitution while banning alcohol was not?

        1. well put.

          the truth has a dignity all its own, and rarely needs endless wanking oratory.

  8. What to even say here? Everyone here has said over and over, well except the sock puppets and brain dead liberals, that the second amendment is clear. Nearly every law and regulation on guns in the fifty states and at the federal level is unconstitutional.

    I dont object to crazy or dangerous felons being prohibited from having guns, but….having seen now how incredibly slimy and scheming politicians are, especially the lefties, I know what they will do with that. If those become the only restrictions they are allowed they will simply cook up more laws that allow them to convict or commit every one of us.

    1. The R party in my state wants to put a right-to-bear-arms amendment into the state constitution. So I thought: why do we have the 2nd amendment at all? Wouldn’t it be better to not have that — to not give the antis a nice big target to shoot for? Because the constitution sure as hell doesn’t provide the government any authority for restricting that right. Then I remembered: people think their rights come from the constitution. Then I remembered why this country is ultimately screwed.

      1. Here in Louisiana we have one, but it is simpler and clearer than the 2nd. The only restrictions are tht you have to be 18 to buy long guns, 21 for handguns. You cant be crazy or a convicted felon. You have to pass a background check on the spot….the dealer calls the sheriff while you are standing at the counter.

        We have open carry and shall issue concealed carry licenses. Damn near everyone in the state, outside the metropolitan areas, has one.
        In those areas gun violence is rare. In the inner cities, not so much.

      2. I got distracted because I needed more ice in my vodka so I sent before I finished.

        Yes, all this splitting hairs over exactly what the second, or any of the amendments say is bullshit. The bill of rights seeks to enumerate some of the rights we are born with. Because they are written down like that the govt. has ceaselessly tried to come up with ways to restrict them based on the thinking that our rights come from that document.

        1. “Let’s keep a good eye on this ‘un. He’s gonna be trouble…”

        2. It really was a first-rate blunder, especially when you think of some of the other blindingly empty-headed ‘bill of rights’-style documents it eventually inspired.

          1. It was hardly a blunder; in fact it was truly inspired. Think of the government’s unlimited power under the current commerce clause interpretation unchecked by the Bill of Rights. Those who wish to increase the size of government would probably feel even less restricted, not more, if there were not certain rights specifically spelled out.

            1. That may be intuitive, but it is very inelegant, since you simply cannot spell out every case in which a right may not be infringed. When you attempt to do so, you imply that the cases you missed do not exist. This serves to provide the legislator with a definite needle to thread, and a framework (consisting of the set of all cases you did not cover) by which the he may try to preemptively hamstring the court. The net result, as we can clearly see, is the creation of a system of law that is de facto restrictive in nature, rather than permissive, with respect to the rights of the government.

              1. That’s what the 9th and 10th Amendments are for.

                (What, you say you’ve never heard of those amendments?)

        3. I got distracted because I needed more ice in my vodka so I sent before I finished.

          Dilute your vodka with ice?? Just because they’re called whisky stones doesn’t mean you can’t use them in vodka.

          1. I’ve got those. The cool factor, especially in a peaty Islay single malt, is undeniable, but they don’t get your booze nearly as cold as ice.

            Which, for whisky, is fine, IMO. I use them when I want a drink that’s a little cooler, not frigid and getting watery.

      3. ” Because the constitution sure as hell doesn’t provide the government any authority for restricting that right. Then I remembered: people think their rights come from the constitution”

        Precisely the argument advanced by Madison *against* the Bill of Rights (before he gave in and drafted it anyway).

    2. I dont object to crazy or dangerous felons being prohibited from having guns

      Which is of course moot, since felons couldn’t care less if they’re prohibited from arming themselves. These unconstitutional statutes only ever affect law-abiding people.


      1. the felons DO care when they get extra harsh sentences though, because they carried a gun in the crime.

        how many convicted felons have you interrogated, or just hung out with and talked to? i can tell you i have had many tell me they expressly avoid carrying a gun because they know they will get seriously penalized if caught. i’m referring to your car thief/burglar type felon.

        ceteris paribus, the average joe confronting a burglar, car thief, whatever is better off and has a better chance of prevailing if that criminal is unarmed.

        1. It is as wrong as punishing someone for wearing bullet injury reducing accessories.

        2. “i can tell you i have had many tell me they expressly avoid carrying a gun because they know they will get seriously penalized if caught. ”

          Felon lies to cop, cop is stupid enough to believe it, film at 11

          1. No, he’s right. At least with regard to burglars and car thieves, who tend to be professional crooks and think rationally. Clients of mine similarly situated have told me the same thing However, that does *not* include crackheads, pimps, low-level (or high-level) dealers, hold-up thugs or gangbangas, most of whom pack if they can.

            1. exactly.

              car thieves, burglars etc. want the swag. they do not want to get caught. also, september (in his idiocy) doesn’t realize that i also worked undercover a long time ago, and thus hung out with scumbag thieves who told me the “real deal” not as a cop, but because they thought they were speaking to a drug dealer.

              i’ve arrested numerous burglars, car prowlers, etc. none were armed with a firearm (yet, note that anybody cop or not confronting one in their own home is almost always justified in using deadly force to stop their advance. heck, i’ve seen several where the homeowner shot after they turned around and were moving away INSIDE the house, and none were even arrested, let alone charged).

              burglars try their best to ensure nobody will be home, because they don’t want to be seen, and ESPECIALLY they don’t want to be shot

              they fear a gun wielding homeowner (at least in my shall issue state) far more than the cops, because thye know homeowners have carte blanche to gun them down if they enter when the homeowner is home.

              the only burglars who are routinely armed are home invasion types, and those aren’t burglars, those are robbers, technically speaking.

              they are usually doper on doper (iow drug rip off).

            2. oh, btw , bohemon, nice to see somebody posting from real world experience and with some actual insight.

    3. and fortunately, even a lot of libs who are against right to carry and the 2nd amendment from a policy perspective are honest enough to admit from a constitutional perspective, it’s clearly an individual right

      when larry fucking tribe finally came to that conclusion, you knew the anti-s were doomed.

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  10. But, Suthenboy, “shall not be infringed” is so….confusing and ambiguous.

  11. it doesn’t take much to have gun rights taken away. people concentrate on the convicted felon thang, and/or some misdemeanors… but it takes SUBSTANTIALLY less “due process” (for loose definition of “due”).

    all it takes is a domestic violence protection order.

    these are CIVIL orders, thus no crime needs be proven beyond a reasonable doubt. the finder of fact is a single judge, there is no right to have an attorney, the standard is “preponderance of the evidence”, and if the judge rules for the order, depending on the length, one loses one’s RKBA for anywhere from 1 yr to forever.

    note also, that because of VAWA, etc. this is the law in EVERY state.

    also, contrary to what some people believe, “domestic” doesn’t just mean wife/girlfriend/significant dating relationship. it also applies to family members (brother, sister, etc.) roommate/housemate, etc.

    if any person with such a “domestic” relation to you succeeds in convincing a single judge by the preponderance of the evidence that you are scary and mean, that’s it – RKBA eliminated

    and possession of a gun in violation of this order is a pretty serious felony.

    imo, even conviction for a felony shouldn’t eliminate the RKBA, when you are talking non-violent felonies, like writing a check on a closed account, etc. but it does

    there has been SOME decent case law on this from what i have read at challenging some of these cases, but it’s a long road

  12. further clarifying the scope of Second Amendment rights

    “Clarifying”, my ass. The second amendment is perfectly clear. The question at hand is whether the court will continue to pretend that federal and local apparatchiki aren’t breaking they law when they violate the people’s right to self defense.


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  14. I went to my local gun shop yesterday and ordered a Ruger Super Blackhawk in stainless – something I’ve always wanted. They had a genuine AK in the gun case and I bought that purely out of principle. I doubt there is a more hated firearm in world by anti-gunners, so I just had to have it. It’s not all that great to shoot since it has that stock made for people with 6 inch arms, but it’s still pretty cool.

    1. Great piece to own and fuck around with but those commie calibers are inconvenient to deal with logistically.

      1. Please ‘splain. Not sure what you mean. thanks

        1. U.S./Nato/U.N. standard rounds are more readily available. And much easier to get through secondhand markets, and more likely to be found lying around in this part of the world.

  15. 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.

    I’m moderately surprised that they turned this one down. The retroactive effect of SCOTUS decisions overturning statutes is an interesting topic, but its hard to see how all these convictions shouldn’t be overturned.

    That law didn’t BECOME unconstitutional when the SCOTUS issued an opinion. SCOTUS said it WAS unconstitutional, and its hard to see how that doesn’t mean it was unconstitutional when it was passed.

    If you had a law that said any black man on the streets after 10:00 should be locked up for 20 years, would anyone argue that those with the bad luck to be jailed before SCOTUS struck it down should serve out their terms?

    1. but your argument ignores the obvious difference…guns are icky.

  16. Aside from Second Amendment cases, how many cases actually go up for review by the SCOTUS? I consider the 2A to be extremely important, Unfortunately they can not ignore the other issues that are also presented to them. Perhaps a solution would be to increase the size of the court and appoint judges to help handle the workload. Possibly making it easier or at least more likely that a 2A case will be heard. Just saying…

  17. Where in the second amendment does it say one has to commit treason to self to please the government of its want of knowledge of you? Barring arms is our Right, fought and obtained this We the People believe, a God given FREEDOM,that of protecting ones family & Property. Who the **** is this government in their need to know if it is on my person, my wife’s, in my house or on my donkeys? It is them The Government i am fearful of not doc holiday? Take a look at Cops attacking people for their voice, at Occupy sites? What about freedom to voice our opinion? When it is gone you are going to trust Government,Please Not of Rome? Please Not until Christ comes back to Rome! As He Is the only ONE i TRUST.

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