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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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Comment Preferences

  •  Tip Jar (16+ / 0-)

    2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

    by TRPChicago on Mon Oct 28, 2013 at 04:20:15 PM PDT

  •  Interesting take on Gura's strategy (4+ / 0-)

    as if he's goading SCOTUS to take another case. I would think that Gura knows his audience.

    IIRC Gura also represented Kachalsky and Gray Peterson in Peterson v. Martinez.

    I think I read somewhere that Gray Peterson asserted that Gura didn't appeal his case to SCOTUS because SCOTUS had already passed on Kachalsky.

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Mon Oct 28, 2013 at 04:42:42 PM PDT

  •  I would think this is right: (4+ / 0-)
    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.
    That's because they have no idea how to apply such principles as they articulated.  

    "One faction of one party in one House of Congress in one branch of government doesn't get to shut down the entire government just to refight the results of an election."

    by Inland on Mon Oct 28, 2013 at 05:04:16 PM PDT

  •  What do you think is holding them back? (5+ / 0-)
    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.
    Would you please expand on what would be "typical" following a landmark decision?

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Mon Oct 28, 2013 at 05:13:33 PM PDT

    •  That's two questions, maybe more. (4+ / 0-)

      Reticence on gun cases may be very prudent jurisprudence on the part of the key conservatives on the Court. Don't wade in, at least until the paths are clearer. That would be a wise use of judicial resources. After all, they've already made the big decisions in Heller and McDonald. The details could immerse them.

      As for the litigation following breakthrough decisions, I'm thinking of the campaign financing cases. There, the Court reached hard for its first case, got it and can move forward - with just a few key decisions - to change the whole field. Perhaps the majority feels that the Second Amendment is a host of smaller, however important, issues.

      What do you think?

      2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Mon Oct 28, 2013 at 05:51:46 PM PDT

      [ Parent ]

      •  From my limited perch? (3+ / 0-)

        As someone who grew up with guns and is now an unarmed resident of NYC, I suspect that the court is waiting for all the smart lawyers in the District Courts and State Supreme Courts and Appellate Courts to develop their best arguments, as they each have a challenge to divine what regulations are consitutional in light of Heller. Each Court has to wing it re what standard to apply and reconcile whatever they choose with their own precedents.

        No court wants to later have their whole series of cases be overturned with one SCOTUS decision so I think they all are hewing very close to the gray line that Heller drew on the map.

        But IANAL, so that's just my guess from the interested peon's gallery.

        "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

        by LilithGardener on Mon Oct 28, 2013 at 06:05:58 PM PDT

        [ Parent ]

      •  FWIW, I think Roberts is holding some of the (3+ / 0-)

        more conservative justices back. That they totally ignored the beginning of the 2nd Amendment in order to come their reading of it in Heller, was pushing the bar way too far. I'm basing that on Roberts' vote on the ACA. Many attorneys surmised he voted in favor of the ACA because his name will forever be associated with the stupid opinions of this Court.

        •  A host of law review articles and other research (3+ / 0-)

          ... came out during the last three decades that supported the "original intent" notion J. Scalia found so compelling for his opinion in Heller. What was so clear to Scalia was not so clear for all the years leading up to Heller. The law changed, in my view, because the Court changed, becoming noticeably more conservative when Samuel Alito joined the bench.

          As for ACA, J. Roberts pretty clearly moved his vote over to the "liberals" at the last minute. I'm betting that as push came to shove, he realized the Court would be viewed as politicizing beyond its charter.

          I'm in the camp, however, that believes upholding ACA on the tax powers of Congress to rather than the Commerce Clause (which is the rationale C.J. Roberts used to change his view of ACA), was extremely clever and future looking. This way, the Court can start chipping back the very broad Commerce Clause justifications that underpin much legislation since the New Deal in the 30's.

          2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

          by TRPChicago on Mon Oct 28, 2013 at 07:56:17 PM PDT

          [ Parent ]

  •  accept neither because I think they have more (2+ / 0-)
    Recommended by:
    LilithGardener, FrankRose

    important things to do than gun laws. The states are churning on them as is the US congress, let them digest a little longer.

    “Conservation… is a positive exercise of skill and insight, not merely a negative exercise of abstinence and caution…” Aldo Leopold

    by ban nock on Mon Oct 28, 2013 at 06:48:47 PM PDT

    •  Do you mean it's better for each state to (0+ / 0-)

      sort through their policy options guessing about what standard of review they should consider when they reform their gun laws?

      "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

      by LilithGardener on Mon Oct 28, 2013 at 10:38:19 PM PDT

      [ Parent ]

  •  thank you TRPChicago... (3+ / 0-)
    Recommended by:
    Miggles, WakeUpNeo, LilithGardener

    great diary...very informative.

    We are not broke, we are being robbed...but we can fight back...#KosKatalogue

    by Glen The Plumber on Mon Oct 28, 2013 at 07:19:47 PM PDT

    •  Thanks, Glen. It's detailed, yet still ... (3+ / 0-)

      ... too brief on the two cases and their theories. This doesn't do justice to either side of the arguments.

      I've heard a rumor that one of our FLAP members is thinking of doing a diary on Lane. I hope someone will get interested in doing one on NRA v. BATFE, too, when the Court puts the case on its calendar.

      2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Mon Oct 28, 2013 at 08:05:07 PM PDT

      [ Parent ]

  •  Thank you, TRPChicago (1+ / 0-)
    Recommended by:

    for your time and energy in putting together this thoughtful diary.

  •  STANDING - a definition (0+ / 0-)

    From the Legal Information Institute at Cornell University


    At the Federal level, legal actions cannot be brought simply on the ground that an individual or group is displeased with a government action or law. Federal courts only have constitutional authority to resolve actual disputes (see Case or Controversy). Only those with enough direct stake in an action or law have "standing" to challenge it. A decision that a party does not have sufficient stake to sue will commonly be put in terms of the party's lacking "standing".

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Mon Oct 28, 2013 at 10:40:16 PM PDT

  •  Lane v. Holder Documents (0+ / 0-)

    The pdfs linked range from about 100kB to 300kB in size.

    Lane v Holder Petition for a writ of certiorari

    Two courts of appeals have held that consumers have standing to challenge the constitutionality of federal laws regulating the sale of firearms. Another
    court of appeals has held that consumers wishing to access gun ranges have standing to challenge a city ordinance prohibiting range operation. But the court below held that a criminal law prohibiting gun dealers from effecting retail transactions does not cause
    consumers an injury-in-fact, and that consumer injuries occasioned by the prohibition are not traceable to the Government.

    The question presented is: Whether consumers have standing to challenge the constitutionality of laws regulating the sale of firearms.

    Brief amicus curiae of Community Association for Firearms Education

    Brief amicus curiae of American Civil Rights Union

    Brief of respondent Eric H. Holder, Jr., Attorney General in opposition

    Reply of petitioners Michelle Lane, et al.

    I think I understand the basic concepts of different types of jurisdiction and standing, but only have the foggiest notion of what traceable to the government means. Would you unpack that a bit for us?

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Mon Oct 28, 2013 at 10:41:48 PM PDT

    •  "Traceable" is part of the "flow" to justify... (1+ / 0-)
      Recommended by:

      ... standing to sue.

      The Fourth Circuit's opinion (which, handily, is in Lane's Petition for Cert) framed the standing test this way:

      To have standing, a plaintiff must be able to show:
      (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

      This shows standing is a flow, a cause-and-effect relationship. The plaintiff has to be harmed or threatened by something specific, he/she/they must have sued the right defendant(s) and the decision has to make a difference.

      All this is to avoid presenting the Court with requests for advisory opinions, avoid obstreperous litigation, pretty much foreclose generic suits like taxpayer challenges to government spending, etc.

      The DOJ pushes back in its response in Lane by arguing that only dealer to dealer transactions are involved in this section of the Gun Control Act. It "does not operate directly on petitioners" and is "the result of the independent action of some third party not before the court."

      2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Tue Oct 29, 2013 at 05:21:53 AM PDT

      [ Parent ]

      •  Thanks (0+ / 0-)

        I think they refer to plaintiffs in Ezell v Chicago as one of their examples of a lower court finding that plaintiffs having standing. But in that case the plaintiffs were required to have training to own a handgun, that included range time. That requirement was mandated by the City of Chicago and the City Council had banned any gun ranges for civilians in the city.

        In Ezell I get why the plaintiffs had standing to sue pre-emptively, before they were ever charged with a crime.

        "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

        by LilithGardener on Tue Oct 29, 2013 at 06:12:56 AM PDT

        [ Parent ]

        •  Nifty Catch-22, that! (2+ / 0-)
          Recommended by:
          a2nite, LilithGardener

          That seems to me to involve two distinct questions. One is whether the plaintiff is someone sufficiently affected by the law or regulation to complain about it.

          A second is whether you can challenge something before you've suffered harm. That's particularly pertinent if the law in question involved criminal penalties and you weren't willing to be a volunteer perp! On this latter issue, that's the reason for using the phrase "pre-enforcement" action. That and the fact that using it may tend to finesse the question of basic standing in the first place.

          I admit I'm somewhat sympathetic with Lane - that as a consumer, he should have standing to challenge the dealer statute. (Yes, a DC gun dealer could complain that it had to do extra paperwork and handling to receive a gun from, say, a Virginia dealer, but the dealer in DC reportedly gained under the law because understandably, he used to charge to handle such transfers.)

          But for what it's worth ... on the bigger issue in Lane - banning interstate sales of handguns except through dealers - I'm on the government's side. I think it's reasonable to have sales of firearms subject to the laws of the state and locality where the buyer is.

          2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

          by TRPChicago on Tue Oct 29, 2013 at 07:29:19 AM PDT

          [ Parent ]

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