The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last month, I expressed some optimism that the Supreme Court would soon grant a Second Amendment case. We know there were four votes to grant a gun case last term. And now, Chief Justice Roberts is no longer the fifth vote. We have Justice Barrett, I thought. Certainly an ostensible 6-3 conservative majority would be enough to grant a gun case. Hope springs eternal.
Today, the Supreme Court denied review in three Second Amendment cases. Each case involved a non-violent felon who sought the restoration of Second Amendment rights. And thes cases were brought by leading Second Amendment attorneys. Holloway v. Garland was filed by the Firearms Policy Coalition. Folajtar v. Garland was filed by David Thompson at Cooper & Kirk. And Flick v. Garland was filed by Alan Gura. None of these cases was even relisted. They were denied outright.
What is going on here? We know Justice Barrett ruled in favor of the non-violent felon in Kanter v. Barr. Alas, my tentative suspicion is that Justice Alito is not willing to rule for a felon, even where doing so would advance the Second Amendment. I still think his strange vote in Gundy was designed to avoid ruling for a sex offender. I do not think there are five votes for a felon case now.
But what about NYS Rifle & Pistol Association v. Corlett. This petition, which was gift-wrapped with a bow by Paul Clement, squarely presents the carry issue. The case was distributed for conferences on 3/26, 4/1, and 4/16. At this point it looks like we will get another dissent from denial of certiorari. Justice Thomas will have to refresh his dissental from Rogers v. Grewal, which was joined in part by Justice Kavanaugh. There should be four votes here. Thomas, Kavanaugh, plus Gorsuch and Alito. The latter two are already on record about the right to bear arms outside the home. Are we to believe that Justice Barrett is unwilling to grant cert? Is that really where we are in April 2021? An unwillingness to resolve a decade-long circuit split about the right to carry?
At this point, the only way for the Court to take a case will be for the government to lose in the lower court. Force the Solicitor General to file a cert petition, and let's ride it out. To be perfectly frank, I would prefer the Court to put Heller out of its misery, and hold the right is limited to the home. That end game would be preferable to this never-ending shell game. So much effort is wasted litigating cases that do not matter. I don't even know if I will bother teaching the Second Amendment in future classes. What's the point? I have to throw my hands up in class and say, "I don't know, and the Court will not tell us."
Heller is thirteen years old this year. In the Jewish tradition, it would be celebrating its Bar Mitzvah. And what a sad Bar Mitzvah it would be.