These are trying times for the Second Amendment in New York State and throughout the nation. This week, the United States Supreme Court mooted NYSRPA’s challenge to a New York City firearms law. The decision was per curiam (no single Justice authored the decision) and the vote was 6-3, with Justices Kavanaugh and Roberts siding with the majority.
While we hoped that this case would not be mooted, and in it the conservative majority on the U.S. Supreme Court would once and for all settle New York State’s failure to respect the doctrine of stare decisis (precedent of previous legal decisions) and hold that Second Amendment challenges must be viewed in light of strict scrutiny analysis, the Court did not agree.
Justice Kavanaugh filed a concurring opinion expressing his concerns that states like New York are not enforcing the Heller precedent. In his concurring opinion, Justice Kavanaugh wrote, “I also agree with Justice Alito’s general analysis of Heller and McDonald. 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.”
There are ten such petitions for certiorari pending before the Court. And that brings us to what happened today. In a rare move on the same day the NYSRPA decision was issued, the U.S. Supreme Court distributed all ten cases for conference this morning, Friday, May 1, 2020. This means that the court is considering re-taking the issue in a new, and potentially better case in the upcoming October 2020 term at the end of this year. Virtually all of these cases pose better Second Amendment issues than NYSRPA’s failed attempt to narrowly strike down a New York City law. Better yet, Justice Kavanaugh hinted his concerns at raising the level of scrutiny used in Second Amendment Analysis.
The potential cases are listed below, as follows:
Mance v. Barr – Whether the federal ban on interstate handgun sales violates the Second Amendment or the due process clause of the Fifth Amendment.
Rogers v. Grewal – In a challenge to New Jersey’s handgun carry permit scheme, whether the Second Amendment protects the right to carry a handgun outside the home for self-defense; and whether the government can condition the right to carry a handgun outside the home on the showing of a special need to carry a firearm.
Pena v. Horan – In a challenge to a California law banning most commonly used handguns, the petition asks the justices to weigh in on the scope of the Second Amendment.
Gould v. Lipson – In a challenge to Massachusetts’ handgun carry permit scheme, whether the Second Amendment protects the right to carry a handgun outside the home for self-defense; and whether the government can condition the right to carry a handgun outside the home on the showing of a special need to carry a firearm.
Cheeseman v. Polillo – Challenge to New Jersey handgun carry permit scheme.
Ciolek v. New Jersey – Challenge to New Jersey handgun carry permit scheme.
Worman v. Healey – Challenge to Massachusetts ban on the possession of assault weapons and large-capacity magazines.
Malpasso v. Pallozzi – In a challenge to Maryland’s handgun carry permit scheme, whether the Second Amendment protects the right to carry handguns outside the home for self-defense.
Culp v. Raoul – Whether the Second Amendment requires Illinois to allow nonresidents to apply for a concealed-carry license.
Wilson v. Cook County – Challenge to Cook County’s (Chicago, IL) ban on assault rifles and large-capacity magazines, as well as to the Second Amendment analysis used by the U.S. Court of Appeals for the 7th Circuit to uphold the ban.
Orders on this conference are expected on Monday, May 4, 2020 at 9:30 a.m. You can expect to receive a follow-up email from us that morning providing you with an update on the Court’s decisions late Monday morning. There is reason for hope. It takes four Justices to decide to grant certiorari on a case. Three dissented from the NYSRPA decision and we expect that they will vote to hear at least one Second Amendment case. We also take Justice Kavanaugh at his word that one of the currently pending Second Amendment petitions for certiorari should be granted. That brings the total to four justices. That is why we have hope. We have all the legal resources and help imaginable at our disposal to join these cases as amici. Where there is help, there is hope.
We are all in the together. The 1791 Society and GOA-New York have decided to work together in the filing of amicus curiae briefs (friend of the court) on any and all cases that the U.S. Supreme Court takes on this matter. We will also be filing an amicus curiae brief on the California ammunition case currently pending before the U.S. Court of Appeals for the Ninth Circuit.
Meanwhile, it is imperative that we all work together to get quality, up to date information to gun owners throughout the state. Please pass this information along to your family, friends, neighbors, colleagues. We are not asking for money, we are asking that you help us distribute quality information to others so that they can understand what is going on.
If you have any legal questions or any other questions regarding our strategy going forward, please send all inquiries to: email@example.com
Have a great weekend. We will see all of you on Monday.
Frank J. Panasuk