The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Justice Kavanaugh wrote in his concurrence:
And I share Justice ALITO's concern that some federal and state courts may not be properly applying Heller and McDonald. The 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 wrote in his dissent, joined by Justices Thomas and Gorsuch:
We are told that the mode of review in this case is representative of the way Heller has been treated in the lower courts. If that is true, there is cause for concern.
Immediately after the case was decided, the Supreme Court distributed 6 Second Amendment cases for the May 1, 2020 conference (H/T to the Duke Center for Firearms Blog.)
- Mance v. Barr (5th Circuit)—challenge to federal prohibition on out-of-state handgun purchases
- Pena v. Horan (9th Circuit)—challenge to California's prohibition on "unsafe" handguns (including "microstamping" requirement)
- Gould v. Lipson (1st Circuit)—challenge to Massachusetts's "may issue" conceal carry licensing regime
- Rogers v. Grewal (3rd Circuit)—challenge to New Jersey's "may issue" conceal carry licensing regime
- Cheeseman v. Polillo (N.J. Supreme Court)— challenge to New Jersey's "may issue" conceal carry licensing regime
- Ciolek v. New Jersey (N.J. Supreme Court )—challenge to New Jersey's "may issue" conceal carry licensing regime
Mance v. Barr is the oldest case on the list. My colleague Alan Gura filed this petition in November 2018. It was originally distributed for the 3/29/2019 conference. But then was "rescheduled." The petition was then distributed at the 4/12/19 conference. Yesterday, the Court scheduled the next distribution for 5/1/2020. This petition is an excellent vehicle if the Court wants a law-profile case that won't reach any sweeping rulings.
Or, if the Court wants to take a conceal carry case, Rogers v. Grewal has been floating around since December 2018. (I am engaged in several gun-related cases with the New Jersey Attorney General). The two criminal prosecution cases can be held over, and vacated if Rogers prevails.
Once the Court decides one, or more of these cases, and clarifies the appropriate level of scrutiny, the other cases can be GVR'd.
Update: SCOTUSBlog located four more Second Amendment cases that were distributed for the 5/1/20 conference:
- Worman v. Healey (1st Circuit)—challenge to Massachusetts ban on "assault weapons" and large-capacity magazines
- Malpasso v. Pallozzi (4th Circuit)—challenge to Maryland's "may issue" conceal carry license regime
- Culp v. Raoul (7th Circuit)—Challenge to Illinois's ban on allowing non-residents to apply for conceal carry license
- Wilson v. Cook County (7th Circuit)—Challenge to Cook County's ban on "assault weapons" and large-capacity magazines
We should know Monday morning whether there is a new grant. And invariably, the local governments will try to moot the cases. Again.