The Volokh Conspiracy
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Second Amendment Roundup: Solicitor General Seeks Guidance from Supreme Court
“Where arms may be carried” and “what types of arms people may possess” should be resolved.
The United States has filed an amicus curiae brief in support of the cert petition in Wolford v. Lopez seeking review of the following issue: "Whether the Second Amendment allows a State to make it unlawful for concealed-carry license-holders to carry firearms on private property open to the public without the property owner's express authorization." As the brief explains, "after Bruen, five States, including Hawaii, inverted the longstanding presumption and enacted a novel default rule under which individuals may carry firearms on private property only if the owner provides express authorization, such as by posting a conspicuous sign allowing guns." The Ninth Circuit upheld Hawaii's law.
In doing so, Solicitor General John Sauer explained how multiple Justices and judges have recognized the need for more guidance from the Court on Second Amendment issues. The brief explains:
Rahimi began the process of clarifying who may possess arms…. This case affords an opportunity to begin addressing where arms may be carried. And the Court should, in an appropriate case, also provide a framework for evaluating what types of arms people may possess…. The Court's consideration of those important questions would help lower courts seeking to interpret the Second Amendment, legislatures seeking to comply with the Constitution, and (most important) ordinary Americans seeking to exercise their fundamental right to possess and carry arms for lawful purposes such as self-defense.
As to the "types of arms" that are protected, as I've posted previously, two cases have been repeatedly relisted and remain before the Court: Snope v. Brown, which concerns whether Maryland may ban semiautomatic rifles that are in common use for lawful purposes, and Ocean State Tactical v. Rhode Island, which asks whether a confiscatory ban on the possession of magazines that are in common use violates the Second Amendment. These cases have been distributed for the conference of Friday May 2, and both would make excellent vehicles to resolve the issue of protected types of arms.
The SG's brief in Wolford makes the following argument that would apply to a number of the ongoing Second Amendment challenges: "The preliminary-injunction posture in which this case arises should not deter this Court from granting review. The court of appeals did not decide this case in haste; to the contrary, it issued an 81-page opinion nearly a year after petitioners appealed…. And since the court's merits analysis all but foreordains the final outcome, further proceedings in the lower courts would serve no useful purpose."
