Category: RKBA

SCOTUS Distributes 2A Cases for Friday Conference

The U.S. Supreme Court has distributed a couple of important Second Amendment cases for conference this Friday, and all eyes will be watching to see whether oral arguments are scheduled as a result.

According to SCOTUSblog, the cases of Snope v. Brown and Maryland Shall Issue v. Moore both challenge Maryland’s restrictive gun control laws.

Snope is a case brought by the Second Amendment Foundation, Citizens Committee for the Right to Keep and Bear Arms, the Firearms Policy Coalition, and private citizen, David Snope. It challenges Maryland’s ban on so-called “assault weapons” and this would be the third time the case has been brought to the high court for review.

SAF, CCRKBA and FPC contend the ban is unconstitutional on the grounds that the Second Amendment makes no distinction between the types of “arms” it protects. The modern semiautomatic rifle, epitomized by the AR-15 and its clones, is the most popular rifle in America. Millions are owned and used b y law-abiding citizens for hunting, competition, recreation, predator control and personal and home defense.

According to a SAF news release Tuesday, “SAF sought cert after the Fourth U.S. Circuit Court of Appeals ruled en banc that the modern semiautomatic rifles banned by Maryland fall outside the protection of the Second Amendment because they are too similar to military arms. SAF and its partners contend this reasoning “is becoming a commonplace misapplication” of Supreme Court precedents established by the 2008 Heller ruling, 2010 McDonald decision and 2022 Bruen decision.

“Snope provides the Supreme Court with an excellent vehicle to correct the widespread misapplication of the Court’s precedent regarding these firearms and the Second Amendment, itself,” said SAF Executive Director Adam Kraut. “The case is on appeal from final judgment with an en banc decision of a circuit court. Moreover, the specific type of firearm in question is commonly owned across the country, placing it well within the scope and protection of the Second Amendment. By granting cert in Snope, the high court can help settle the matter once and for all.”

Moore challenges Maryland’s licensing requirement to even own a gun. As noted by SCOTUSblog, “Moreover, they contend that Justice Thomas’s footnote in Bruen was limited to licenses to carry guns in public and does not apply to laws, like Maryland’s, which require a license to own a gun at all. But in any event, the challengers argue that the state’s requirements are “abusive” because they collectively impose an excessive delay: up to a month for a background check to obtain a license, up to a week for a second background check to purchase a gun, and additional time to complete a firearm-safety course.”

This case should have the attention of gun rights activists and anti-gunners in Oregon and Washington, where the effort is ongoing to require people to get a permit to purchase from the police prior to being able to buy a gun.

If the Court grants certiorari in these cases, the outcome could have a devastating effect on gun control in the United States. Several states have banned so-called “assault weapons,” and a ruling that modern semi-autos are protected by the Second Amendment would almost certainly nullify those bans.

Another case up for consideration is Gray v. Jennings, involving SAF, FPC and others, challenges a ban on so-called “assault weapons” and “large-capacity magazines” in Delaware. There is no small irony in this case, as it seeks to undo a gun control law in the home state of departing President Joe Biden, a career gun control proponent who leaves the White House Jan. 20 as former President Donald Trump returns for a second term.

Mate v. Westcott – FPC Law Challenge to Louisiana Non-Resident Carry Ban

LAKE CHARLES, La. (December 23, 2024) — Firearms Policy Coalition (FPC) announced Monday that it has filed a new federal lawsuit challenging Louisiana’s ban on firearm carry by non-residents. The complaint in Mate v. Westcott can be viewed at firearmspolicy.org/mate.

“Closing off nonresidents’ ability to obtain a carry license substantially infringes their constitutionally protected right to carry a firearm in public for self-defense,” the complaint says. “There is no well-established and representative historical tradition of restricting the ability to bear arms based on residency.”

“Peaceable people have a constitutionally protected right to carry firearms throughout the United States,” said FPC President Brandon Combs. “Second Amendment protected rights don’t end at a state’s border. This case is an important step towards achieving our goal of restoring the right to bear arms everywhere.”

The Mate v. Wescott case is part of FPC’s high-impact strategic litigation program, FPC Law, aimed at eliminating immoral laws and creating a world of maximal liberty. FPC is joined in the litigation by two FPC members. FPC thanks FPC Action Foundation for its strategic support of this FPC Law case.

The Supremes have never been all that big on taking ‘interlocutory’ appeals, that is, the case hasn’t been heard and ruled on all the way through the lower courts.

Justice Thomas’s Statement Reaffirms Sword-Shield Dichotomy
“A defendant can always raise unconstitutionality as a defense ‘where a statute is invalid upon its face and an attempt is made to enforce its penalties in violation of constitutional right.'”

Today [the 9th] the Supreme Court denied cert in Wilson v. Hawaii, which I wrote about here. Justice Thomas wrote a statement respecting the denial of cert, joined by Justice Alito. The posture of the case is a bit unusual. The defendant was convicted of carrying a firearm without a license. At the time, Hawaii imposed a “may issue” conceal carry law. It turns out that Wilson had never applied for a carry permit. To challenge his conviction, the defendant argued that Hawaii’s carry law runs afoul of Bruen. However, the Hawaii Supreme Court held that he could not raise the Second Amendment as a defense against the carry regime. Justice Thomas explains:

There, the [state] court invoked state standing law to avoid any meaningful Second Amendment analysis. It held that, because Wilson had not applied for a license and had not been charged with violating the licensing statute itself (which was not a criminal statute), he lacked standing to challenge the particulars of the licensing regime. Id., at 12–13, 543 P. 3d, at 444–445. Instead, he could argue only that the Second Amendment categorically forbids state licensing regimes. Because that is not the case, the court held, Hawaii’s prohibitions on unlicensed carry “do not graze Wilson’s Second Amendment right.”

Justice Thomas explained why this approach is mistaken:

A defendant can always raise unconstitutionality as a defense “where a statute is invalid upon its face and an attempt is made to enforce its penalties in violation of constitutional right.” Smith v. Cahoon, 283 U. S. 553, 562 (1931). A “long line of precedent” confirms this point. See, e.g., City of Lakewood v. Plain Dealer Publishing Co., 486 U. S. 750, 755–757 (1988) (collecting cases).

Even though Wilson was not being prosecuted for violating the civil registration law, the defendant could still challenge the government’s enforcement action based on the unconstitutionality of the gun control law.

Here, the Defendant does not need any sort of cause of action to raise the unconstitutionality of the statute. The Constitution is being used as a “shield.”

However, Justice Thomas does not say that “A defendant can always raise unconstitutionality,” full stop. It can always be raised as a “defense” or a “shield.” But for the Constitution to be raised as a “sword” to seek affirmative relief, a cause of action is needed. Justice Thomas recognized this principle in last term in DeVillier v. Texas:

Constitutional rights do not typically come with a built-in cause of action to allow for private enforcement in courts. See Egbert v. Boule, 596 U. S. 482, 490–491 (2022). Instead, constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose, see, e.g., 42 U. S. C. §1983. (slip op. at 5.)

Wilson should have been able to invoke the Second Amendment defensively, but could only assert it offensively with a cause of action.

Justice Thomas continues to bring clarity to an area of that is often misunderstood.

For those interested in reading further, Seth Barrett Tillman and I discuss the sword-shield dichotomy in Sweeping and Forcing (pp. 389–404); see also Anderson v. Griswold, Colo., 543 P.3d 283, 348, 351 & n.7, 356 (Colo. Dec. 19, 2023) (Samour, J., dissenting) (citing Sweeping and Forcing, supra) (adopting the sword-shield dichotomy as basis for dismissing plaintiffs’ purported Section 3 action).

Good News and Bad News From Supreme Court on Monday

While there are a lot of good things gun rights advocates can celebrate, including at least four years of knowing that gun control won’t pass at the federal level unless something very strange happens, but that doesn’t mean everything is good news.

There are way too many anti-gun states still for that to be the case.

So, as a result of that, we need to use the courts to overturn some of these insane laws. Eventually, at least some of them need to go to the Supreme Court where, hopefully, the justices will slap the laws down and down hard.

And on that front, there’s some good news and some not-so-good news.

Let’s start with the good news.

The United States Supreme Court has set an official conference date of December 13 to decide if the High Court will hear Snope v. Brown, a case directly challenging Maryland’s assault weapon ban, addressing whether states can legally ban semi-automatic rifles such as the AR-15, commonly owned and used by law-abiding citizens. While some say this case has the potential to redefine the future of firearm legislation across the nation, the fact that arguments are so deeply rooted in precedent set by earlier landmark Second Amendment decisions such as District of Columbia v. Heller (2008) and New York State Rifle & Pistol Association v. Bruen (2022) makes one wonder, haven’t we been here before?

It has been over a decade and a half since Heller affirmed that firearms “in common use” for lawful purposes cannot be banned, a principle further solidified just over two years ago when Bruen held that firearm laws must be consistent with the nation’s historical tradition of firearm regulation, rejecting the use of “means-end” tests by future courts when evaluating firearm restrictions. These precedents are central, and one could say redundant, to the arguments outlined in Snope v. Brown, however, that has not stopped states like Maryland from enacting laws that fly in the face of previous SCOTUS rulings.

The truth is that Maryland and every other state with an assault weapon ban on the books needs to get over it. The mean-end testing that used to be applicable to gun control laws no longer applies, which is good because I don’t see how that wasn’t subjective as Hades.

Of course, this is really just the next step in a process that was already in motion and doesn’t necessarily mean all that much except that we’ll get a feel for where the justices will come down on this one. I’d like to say Bruen tells us exactly what happened, but then Rahimi suggested otherwise. In a few days, we’ll have some more to go on.

Hopefully, it’ll be clear that assault weapon bans’ days are numbered.

That’s the goodish news.

Now, the not-so-good.

The Supreme Court declined to intervene or overturn a Hawaii State Supreme Court decision that allowed the state to prosecute a man carrying a loaded pistol without a license.

Justices Clarence Thomas and Justice Samuel Alito criticized the Hawaii court’s ruling, but supported the U.S. Supreme Court’s move on technical grounds. Thomas wrote that the court should hear an “appropriate” case to “make clear that Americans are always free to invoke the Second Amendment as a defense against unconstitutional firearms-licensing schemes.”…

Thomas, writing Monday, said: “Had the Hawaii Supreme Court followed its duty to consider the merits of Wilson’s defense, the licensing scheme’s unconstitutionality should have been apparent.”

He noted that Wilson could ask the Supreme Court to review the case again — a view echoed by Justice Neil Gorsuch.

This is, of course, the “Aloha Spirit” case that stirred up so much hate and discontent.

The truth is that Hawaii’s licensing scheme is incredibly problematic, and rather than make the case that no, it really wasn’t, the judges there simply pretended that it doesn’t matter because their state’s history is somehow completely different from the rest of the nation’s. Granted, Hawaii wasn’t exactly one of the original 13 colonies or anything, but neither were most other states. Our nation’s founding predated and supersedes state history on matters of constitutional law and, frankly, I wish the justices had opted to hear it.

Cam should have more on this case later today.

In the meantime, though, the good news here–the reason I didn’t call it “bad news”–is that Wilson can kick off the process again, and at least two justices seem to want him to do just that. I hope he does and I hope gun rights groups through the nation help with that, because if Hawaii can get away with what’s on the books there, someone else is going to do it and argue it’s justified.