On Friday, May 15th, the United States Supreme Court will meet in a private conference to vote on whether or not to grant eleven, Second Amendment cert petitions.
We could know as early as this Friday afternoon whether or not any of the petitions have been granted. Most likely, we will have to wait until Monday, May 18th to discover whether or not any of the petitions have been granted, denied, or postponed for a future vote.
It takes the vote of four justices to grant a cert petition, five votes to decide a case on its merits and at least six votes to issue an unsigned opinion of the court (per curiam).
Six of the eleven cert petitions are about whether or not there is a right to carry a handgun in public. Five of the six are from states where a permit to carry a handgun allows one to carry a handgun both openly and concealed. One of the six is from Illinois and is strictly a concealed carry case.
Two of the eleven are about so-called “assault” rifle and “high capacity” magazine bans.
One is about the ban on the interstate sale of handguns by Federally licensed firearms dealers.
One is about California’s “Safe” handgun roster of handguns approved for sale in California and micro-stamping. The last time I checked, no new handgun has been added to the list since 2003 but don’t quote me on that.
Appearing for its first, and very likely last conference is a cert petition in which a man challenges his lifetime ban on the possession of firearms because of his involuntary commitment to a mental institution.
Way back in June of 2008, SCOTUS published its first in-depth analysis of the Second Amendment in which the Second Amendment right was defined and then applied to a District of Columbia ordinance which prohibited the possession of handguns and prohibited the carrying of loaded firearms in the home and on one’s property. Based on the Second Amendment right defined in the decision, 5 of the 9 justices held that the District’s bans were unconstitutional and affirmed the decision of the court of appeals which likewise had held the laws were unconstitutional.
The Supreme Court, in its in-depth examination of the Second Amendment right clearly held that Open Carry is the right guaranteed by the Second Amendment. Indeed, the only place in the entire decision that defined what the right to keep and bear arms means said that Open Carry perfectly captures the meaning of the right to keep and bear arms.
The justices also devoted an entire section of the opinion to what the Second Amendment is not. The very first thing that section (III) said is not a right is concealed carry, and it is not a right to carry arms in certain sensitive places such as schools and government buildings. This was followed by the caveat that nothing in its decision should cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill or regulations on the commercial sale of arms.
Unsurprisingly, the four justices in the dissent agreed with the five justices in the majority that concealed carry is not a right and can, therefore, be banned.
And so what happened after this decision (District of Columbia v. Heller) was published? The lower courts were inundated with lawsuits by folks claiming that they have a right to concealed carry permits and from felons claiming that they have a Second Amendment right to keep and bear arms.
There have even been a couple of cases challenging the lifetime ban on the possession of firearms by those who have been involuntarily committed to mental institutions.
To date, these cert petitions that argued that the Supreme Court means the opposite of what it said in the Heller decision have all been denied.
Notwithstanding those cert petitions that challenge presumptively lawful prohibitions, there is now a greater obstacle to granting a Second Amendment cert petition and that is the ease by which the government can change a law if the cert petition is granted.
As NYSRPA v. NYC was recently dismissed as moot after the cert petition had been granted and argued on the merits, it would be a waste of time for the justices to grant a cert petition that can be easily mooted before the Court publishes its decision should it agree to review the case.
The biggest obstacle to these carry petitions being granted cert is that none of them challenges the law requiring a permit to carry a handgun in public. If the petitioners are granted a permit, at any time prior to a SCOTUS decision becoming final, the case becomes moot.
The concealed carry case out of Illinois challenges the inability of certain non-residents to apply for a concealed carry license. The petition does not explicitly raise the question as to whether or not they have a right to be issued a concealed carry permit. The question before the court is whether or not they have a right to apply for a concealed carry permit. Illinois could moot that case by simply giving the plaintiffs applications for a concealed carry permit.
And then we have the already high bar of SCOTUS Rule 10. As hard as it is for most people to believe, the Supreme Court does not view itself as a court that corrects the mistakes of the lower courts. Instead, it views itself as a court that resolves conflicts between the lower courts on Federal questions of law, and even more rarely, on questions of national importance.
There are a few more cases that were on hold in Federal appellate courts waiting for the decision in NYSRPA v. NYC. If SCOTUS grants any of the pending cert petitions then those cases will undoubtedly be placed on hold yet again.
If SCOTUS does grant a cert petition before the end of its current term that ends at the end of June then that case will not be argued and decided until its next term, beginning the first Monday in October of this year.
NYSRPA v. NYC was filed on September 4, 2018. The cert petition was granted on January 22, 2019. The case was argued on December 2nd, 2019. The case was dismissed as moot on April 27, 2020.
My California Open Carry lawsuit, Charles Nichols v. Gavin Newsom et al, is currently on appeal in the 9th circuit. My appeal cannot be mooted by a change in law, and certainly not by granting me a license to openly carry a handgun. This is partly because I challenge the constitutionality of a license requirement and because my lawsuit is not limited to the carrying of handguns, and because I challenge all restrictions on Open Carry in non-sensitive public places in California, and because I seek declaratory relief.
There are a couple of boring procedural law reasons as well as to why my appeal can’t become moot. I will spare you the details.
The 9th circuit court of appeals is the last circuit to decide on whether or not the Second Amendment right extends outside the interior of our homes.
That is the threshold question in Young v. Hawaii. As of this writing, the stay, in that case, has been lifted and en banc oral argument before an eleven judge panel of 9th circuit court of appeals judges is scheduled to take place the week of September 21, 2020.
Although my appeal is not stayed, my California Open Carry appeal will not be decided by the three-judges assigned to my appeal until after the mandate issues in the en banc panel of Young v. Hawaii because the decision, in that case, will be binding on my three-judge panel.
My California Open Carry lawsuit was filed on November 30, 2011.
Young v. Hawaii was filed six months later on June 12, 2012.
Mr. Young’s appeal was argued and submitted for a decision three days before I argued my appeal in February of 2018. And although my case was initially taken under submission for a decision, the submission was vacated 12 days later. That means the three-judge panel decision in Young v. Hawaii would be binding on my three-judge panel. Now that the Young v. Hawaii appeal is being reheard by an eleven judge en banc panel, it will be that en banc decision that is binding on my three-judge panel.
And just to make things interesting, whichever way the en banc court in Young v. Hawaii decides, the decision in my appeal could possibly be reheard before an en banc panel as well.
It is a pity that the National Rifle Association via its official state affiliate, The California Rifle and Pistol Association had a lawsuit, Peruta v. San Diego, that argued to uphold California’s Open Carry bans in favor of concealed carry permits as did the Second Amendment Foundation, The CalGuns.nuts Foundation and the Madison Foundation that also argued to uphold California’s Open Carry bans in favor of concealed carry permits in its 9th circuit lawsuit, Richards v. Prieto.
Both of these concealed carry lawsuits were consolidated and lost before an eleven judge en banc court that held concealed carry is not a right, as per the Heller decision, and banning what might be a right (Open Carry) does not make something (concealed carry) into a right which is not, and never has been a right.
These so-called gun-rights groups wasted the better part of a decade fighting against our right to keep and bear arms. As a result, my appeal, and Mr. Young’s appeal, the only two appeals that sought to vindicate our right to openly carry firearms in public, were delayed time and again. Delayed until SCOTUS finally drove a stake through the heart of the NRA concealed carry lawsuit, Peruta v. San Diego (Richards did not file a cert petition).
But then NYSRPA v. NYC came along and our appeals were once again put on hold.
And so we wait.