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Two cases are pending this fall which offer the Supreme Court opportunities to delve into Second Amendment rights and the powers of Congress to regulate interstate commerce.

The Court's seminal decisions - establishing a constitutional right to have handguns in homes for self defense in Heller (2008) and applying the Second Amendment to states and localities in McDonald (2010) - reportedly have spawned more than 700 civil and criminal cases raising Second Amendment issues. Most of the cases that have gone to decision have upheld existing laws.

The Supreme Court as of 2010
The US Supreme Court in Action
SCOTUS has not taken a major gun rights case since McDonald. It has turned down requests to review more than 60 cases. Petitions for two civil cases are now pending: Lane v. Holder and NRA v. BATFE. These are direct challenges to long-standing Federal gun laws. Lane was on the Court's calendar for October 11 but surprisingly, SCOTUS did not announce whether it would review the case. NRA is a bold attempt to get the Court's attention. It is not yet calendared.

Beneath the squiggling, some ideas why these cases may be different from the ones the Court - so far - has not been willing to hear.

THE CASES THAT DIDN'T MAKE THE CUT.  Justices Scalia in Heller and Alito in McDonald took pains to underscore that there would be ample room for reasonable gun regulation under the majority's view of the Second Amendment. So perhaps it should come as no surprise - in the words of the Law Center to Prevent Gun Violence - that "the vast majority of this [ensuing] litigation has been unsuccessful because most, if not all, federal, state and local firearms laws easily satisfy the Supreme Court's holdings." For example:

-  restricting concealed or open carrying of firearms in public,  
-  prohibiting felons and/or misdemeanants from possessing firearms,  
-  increasing sentences for possessing a firearm while committing a crime,   
-  restricting machine guns and other military-style weapons and
-  registration requirements.

This October, SCOTUS decided not to accept one of these types of cases, the "may carry" gun case of Woollard v. Gallagher. Maryland's Handgun Permit Review Board decided that Woollard had "not demonstrated a good and substantial reason to wear, carry or transport a handgun as a reasonable precaution against apprehended danger in the State of Maryland." The Fourth Circuit Court of Appeals held that Maryland's "good and substantial reason" standard did indeed infringe Second Amendment rights, but it was a permissible case-by-case determination and the standard reflected governmental interests in aiding police work and reducing the number of guns on the streets. (Lilith's recent diary on this case explains the issues in detail.) The result of not taking Woollard or any similar cases in previous terms is to leave the "may carry" laws in effect.

In fairness, the Law Center's editorial opinion - its rationale that the Court's rejections are "because [most] firearms laws easily satisfy the Supreme Court's holdings" - may be premature and too optimistic. In Moore v. Madigan, the Seventh Circuit Federal Court sitting in Chicago invalidated Illinois' ban on carrying loaded guns in public. (Illinois was the last state to flatly forbid concealed carry.) The 2-1 majority opinion by J. Posner held that the self-defense rationale in Heller could not reasonably be limited to preserving safety only in one's home. In deference to the Illinois legislature, the Federal Court stayed the effect of its ruling for six months to give the legislature time to act. (The State did not appeal Moore to the US Supreme Court!) This fall, the Illinois Supreme Court (People v. Aguilar), saying it was influenced by the Moore decision, struck down as unconstitutional a state law making carrying a gun outside one's home an "aggravated use of a weapon" and therefore a felony. But such cases - so far - are exceptions.

Sidebar: This dairy does not do justice (!) to criminal cases. The Court has already decided to take two of them this term - Abramski v. United States (which deals with what licensed gun dealers should know about straw purchasers) and Rosemond v. United States (when does a statute increasing criminal penalties for carrying a gun apply to accomplices?). While they offer room to make Second Amendment pronouncements, these cases can be decided on narrower grounds and in my opinion, probably will be. Still, these two will be fascinating cases to follow.
To date, gun rights advocates cannot be pleased with the lack of tangible results from the profusion of activist litigation. Nevertheless, the NRA's litigation strategy continues unabated. As we'll see in its petition in NRA v. BATFE, the NRA is pressing the Court hard to take this as its next case.

THE NEXT WAVE.  Civil cases now awaiting SCOTUS review focus on the core of Federal gun laws - The Omnibus Crime Control and Safe Streets Act and the Gun Control Act. Congress passed both in 1968 following assassinations of President Kennedy's brother Bobby and Dr. Martin Luther King. These laws set forth a regime of dealer licensing and an array of prohibitions and restrictions on the sale and transfer of firearms.

Lane v. Holder. Federal law makes it a felony for Federally licensed firearms dealers (but not individuals) to sell handguns to residents of another state unless the transfer is accomplished through a licensed dealer in the buyer's home state. Lane and two others are DC residents. The only Federally licensed gun dealer in DC who sells to the public is no longer in business. Lane argues that the 1968 law imposes costly and burdensome requirements on consumers and is unconstitutional.

The lower courts summarily dismissed Lane's case on the ground that this provision operates only against dealers and potential consumers therefore do not have standing to sue. Lane argues that they are presenting "a recurring issue of national importance" and that lower Federal courts have split on whether consumers have standing to challenge restrictions on sellers.

NRA v. BATFE. Another provision prohibits dealers (but not individuals) from selling handguns and handgun ammunition to those under the age of 21. The NRA and two 19 year old prospective buyers argue the ban is anomalous for many reasons, for example, younger people serve in the US military. The Fifth Circuit Court of Appeals found that potential buyers had standing, but held that the ban dealt with weapons most commonly used in violent crimes and was permissible under the Second Amendment.

The NRA is bold in describing the situation as it sees it (p. 2 of its Petition for Certiorari): "[J]urisdictions have engaged in massive resistance to the clear import of those landmark decisions [Heller and McDonald], and the lower federal courts, long out of the habit of taking the Second Amendment seriously, have largely facilitated the resistance."

WHAT CASES GET HEARD?  Upwards of 8500 cases are presented to the Court during each nine month term. The Justices confer two or three times a month to decide which 80 or so cases they will take for briefing and oral argument. Before they vote, they accept briefs on the question whether the issues presented merit the Court's attention. Lane was scheduled for SCOTUS's conference in October but the Court did not announce whether it would take up the case; the NRA case is not yet on the conference calendar for consideration.

So ... how does the Court determine what it will hear? One thing the Court does particularly well is to control its work load in the face of pleas by some of the best and brightest advocates in the law profession. Only the issues most inviting to any four justices make the cut.

The Court has devised many ways to screen cases. A key factor is the significance of the issues presented. That invites disputes on precisely what issue(s) a given case presents. The Court has been known to reframe the question it wants the parties to address. Another key factor is whether lower court decisions have split on the issue, the Court being more disposed to resolve a case if there are conflicts among the Federal appellate courts. In Lane v. Holder, the government disputes Lane's contention that there are divided decisions. In NRA, as quoted above, the petitioners argue that lower Federal courts are "stubbornly" obstructing SCOTUS's Second Amendment holdings.

A vital touchstone for invoking Federal jurisdiction is "standing". Do the parties have a sufficient interest to bring the case? This concept is variously referred to as having a personal stake in the outcome or having suffered or been threatened with actual injury. This sounds like an elastic concept that could be flexibly applied, and it certainly is. The prospective buyers in Lane, for example, analogize their situation to books - if some statute prohibited selling books across state lines, is there any doubt that prospective buyers' First Amendment rights would be at risk?

When applied to constitutional litigation, considerations of standing help the courts control invitations to deal with what often are policy judgments within the purview of a legislature.

This business of accepting cases for review takes place for the most part (some cases can be taken as a matter of right) under the rubric of granting Petitions for Writs of Certiorari. All this means is whether SCOTUS will ask a lower court to send along its record and opinions for further review. (When SCOTUS asks, the answer is always Yes.) Granting "cert" is entirely within the Court's discretion. It does not give reasons for granting or refusing cert, prompting much frustrated speculation. And importantly, no precedential value is to be accorded the Court's action, despite the fact that not accepting the case leaves in place the decision reached by the lower court. Even after it hears the merits of a case, the Court can reject cert as "improvidently granted," which is the Court's law language for "oops."

AFTER ALL THIS, SO WHAT?  Now to matters strictly of opinion - on one hand ... and on the other. Comments, corrections and civil disputations are welcome!

My take is that the Law Center (a source for case descriptions and analysis with a liberal bent) is only half right, for I doubt SCOTUS has been refusing review "because" state and Federal firearms laws generally conform to the Second Amendment. Letting lower court cases stand, letting jurisdictions adjust their laws to their own constituencies, is a way to give meaning to the court's caveats that there is room in the Second Amendment for reasonable regulations. I'm thinking SCOTUS wants to wait so these issues can percolate and better inform its judgments going forward.

The Heller case, Justice Scalia's artful opinion aside, was a fundamental constitutional breakthrough with profound societal implications. Personally, I disagree with his dismissing the first 13 words of the Second Amendment as not operative but only "precatory" and his "originalist" binding of today's law to policy notions from pre-Revolutionary times. Whatever, not even the conservative majority of this Court seems inclined to wade into the jungle of litigation typically pursued by beneficiaries of a new and fundamental application of constitutional principle.

Shrewd pro-gun advocates - like Alan Gura, a lawyer involved in the Lane, Woollard and NRA law suits, who also argued Heller and McDonald successfully - may see challenging those 1968 Federal laws as important, strategic and possibly more likely of success ... at this time. After all, the Court would not be messing directly with the huge variety of state statutes and practices, but with "its own" Federal system. Moreover, interstate commerce in firearms and ammunition offers the alluring prospect for sweeping changes irrespective of state boundaries. Let's face it, the Court could find it easier to change Federal law than Congress. While Senators and Representatives wouldn't step up to pass "anti-gun" legislation in 2013, it would be even tougher politically for legislators to void gun laws now on the books.

In the petition in its own case, the NRA confronts the Court itself, goading the majority to step back into the thicket this term by arguing, in effect, that respect for the Court and its jurisprudence is what is really at issue.

Okay, so why didn't the Court act on and approve the petition for cert in the Lane case in its October conference? After all, the legislation being challenged is 45 years old and pre-dates Heller by a generation. The statute contains broad-brush Federal proscriptions filled with nooks and crannies and arguable voids of logic. (Which, it must be acknowledged, is typical of many legislative enactments.) Congress was stalemated from acting on gun legislation in 2013; this Court is not shy about wading into Congress's domain (think the campaign finance reform cases).

On the other hand, why might the Court not take on the Lane case? Maybe a justice or two needs to think longer on which gun rights case deserves constitutional significance? Maybe because the Court knows other cases are on the way and it's looking for a different one to rationalize - or dismantle - the 1968 laws? Because the majority sees the possibility of a conservative-leaning justice who might slip away if pushed too soon? On the other side of that bench, a minority of four can grant cert. The minority may be unwilling to risk review unless the case looks especially congenial to its views.

For advocates, even the most confident ones who have lost the case below are accepting the risk of a more expensive loss with their appeal. This is especially true for ideological litigation like gun rights where cases are seen as stepping stones to further litigation and losses could be a setback. Overarching strategy for the longer term is in play, beyond the confines of a given case. (See Marcia Coyles' fascinating account of the advocates strategies and disagreements among themselves on both sides of the Heller case in The Roberts Court: The Struggle for the Constitution (2013)). What is true for advocates may also be so for justices.

The possibilities are inviting, indeed, and respected lawyers on both sides are persistent. And even when the court takes the next gun case, we will not know for sure why it did so.

The Daily Kos Firearms Law and Policy group studies actions for reducing firearm deaths and injuries in a manner that is consistent with the current Supreme Court interpretation of the Second Amendment. If you would like to write about firearms law please send us a Kosmail.

To see our list of original and republished diaries, go to the Firearms Law and Policy diary list. Click on the ♥ or the word "Follow" next to our group name to add our posts to your stream, and use the link next to the heart to send a message to the group if you have a question or would like to join.

We have adopted Wee Mama's and akadjian's guidance on communicating.  But most important, be kind, for everyone you meet is fighting a hard battle.

Originally posted to Firearms Law and Policy on Mon Oct 28, 2013 at 04:20 PM PDT.

Also republished by Shut Down the NRA and notRKBA.

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