Supreme Court Second Amendment Update 3-27-2025
Edit: The Antonyuk cert petition was rescheduled after this article was published. That was not on my Bingo card, but I hope it is a good sign.
One of the two cases in which the gun-rights community seems to be the most interested, the case challenging a ban on “large capacity” magazines, has a new wrinkle. Last week, the 9th Circuit Court of Appeals upheld California’s ban on magazines that hold more than ten rounds. The timing was interesting. The decision was published last Thursday, the day before the interlocutory magazine ban cert petition out of Rhode Island was scheduled for its ninth SCOTUS conference, in which the justices vote on which cert petitions they will grant.
We will never know for certain whether that 9th CCA opinion played a deciding role, but the petition was once again relisted. Tomorrow is the tenth time the cert petition was scheduled for a conference; it was rescheduled twice. On its heels is a cert petition seeking review of the United States Court of Appeals for the District of Columbia Circuit that upheld the District’s “large capacity” magazine ban.
Last year, SCOTUS made it clear that it isn’t going to grant any Second Amendment interlocutory petitions, and so it is surprising that the petition out of Rhode Island has survived this long. This is particularly true in light of Supreme Court Rule 10, which says the Supreme Court rarely grants petitions that don’t involve a split between the Federal circuits or a split with a state court of last resort on a Federal question. Given that these magazine bans are only in Federal circuits where there is no doubt the appellate courts will uphold the bans, there will not be a circuit split.
That said, SCOTUS Rule 10 does say that SCOTUS can grant cert petitions that present questions of national importance. It remains to be seen whether or not there are four justices who think magazine bans present a question of national importance.
The second petition involves “assault rifles.” It has been listed for conference nine times and rescheduled once. It is out of Maryland (the Fourth Circuit). The petition seeks review of a final judgment, so no interlocutory appeal problem there. However, it suffers from the same SCOTUS Rule 10 obstacle as the “large capacity” magazine bans. These “assault rifle” bans are found in Federal circuits where there is no possibility of one being overturned, and thus no possibility of a Rule 10 split for the justices to resolve.
If there is anything we learned from the oral argument in the bumpstock case, it is that the justices know very little about firearms.
Both the magazine ban (Ocean State Tactical) and the rifle ban cert petitions (Snope) are scheduled for tomorrow’s conference. Another extremely important petition (Antonyuk) out of the Second Circuit Court of Appeals is among the petitions scheduled for the conference.
Antonyuk presents the following two questions in its petition. 1. Whether the proper historical time period for ascertaining the Second Amendment’s original meaning as applied to the states is 1791, rather than 1868; and 2. Whether “the people” must convince government officials of their “good moral character” before exercising their Second Amendment right to bear arms.
The justices could have answered the first question in NYSRPA v. Bruen, but did not. I see no reason why they would ever grant a petition to answer that question. Suppose they did and held that 1791 is the proper historical time period; that would entail that nearly every gun law violates the Second Amendment. That will never happen. As for the second question, the justices certainly do not want to put themselves in the position of deciding what constitutes “good moral character.” And again, there is that pesky Rule 10 obstacle to granting cert and deciding the case on its merits.
There are three more Second Amendment cert petitions and a motion for reconsideration scheduled for tomorrow’s conference. If it were up to me, SCOTUS would not be allowed to pick and choose which appeals it will decide. One hundred years ago, Congress gave SCOTUS that power after the justices promised to decide five hundred cases each term. SCOTUS never came anywhere near that number.
Congress can change that, but voters are easily distracted by shiny objects. Earlier this week, the issue was whether poor people should be allowed to buy soda pop with their food stamps. Okay! The object does not have to be shiny. Voters are easily distracted and have the attention span of a trout.
Here are the cases scheduled for tomorrow’s conference. Click on the case number, and you will be taken to the SCOTUS docket for that case, should you wish to take a deep dive into the case. As always, if a waiver was filed (or no response was filed) and the petition goes into conference without a justice requesting a response, then the petition was never voted on. The petition was placed on the SCOTUS deadlist and will appear as “Petition Denied” on next week’s Orders list. A “GVR” is a Grant, Vacate, and Remand, which, for all intents and purposes, sends the case back to the lower courts for a do-over. In the past two terms, I can only recall one petition where the Feds asked for a GVR, which was denied. I chalk that up to a clerical error.
Ocean State Tactical, LLC, dba Big Bear Hunting and Fishing Supply, et al, Petitioners v. Rhode Island, et al. No. 24-131 The questions presented are: 1. Whether a retrospective and confiscatory ban on the possession of ammunition feeding devices that are in common use violates the Second Amendment. 2. Whether a law dispossessing citizens without compensation of property that they lawfully acquired and long possessed without incident violates the Takings Clause. Aug 02 2024 Petition for a writ of certiorari filed. Response due November 5, 2024. Nov 05 2024 Brief of respondents Rhode Island, et al. in opposition filed. Nov 19 2024 DISTRIBUTED for Conference of 12/6/2024. Dec 09 2024 DISTRIBUTED for Conference of 12/13/2024. Dec 11 2024 Rescheduled. Jan 06 2025 DISTRIBUTED for Conference of 1/10/2025. Jan 13 2025 DISTRIBUTED for Conference of 1/17/2025. DISTRIBUTED for Conference of 1/24/2025. Feb 14 2025 DISTRIBUTED for Conference of 2/21/2025. Feb 24 2025 DISTRIBUTED for Conference of 2/28/2025. Mar 03 2025 DISTRIBUTED for Conference of 3/7/2025. (x8). Rescheduled x 2. DISTRIBUTED for Conference of 3/21/2025. (x9). Rescheduled x 2. Mar 24 2025 DISTRIBUTED for Conference of 3/28/2025.(x10). Rescheduled x 2. David Snope, et al., Petitioners v. Anthony G. Brown, in His Official Capacity as Attorney General of Maryland, et al. No. 24-203 QUESTION PRESENTED Whether the Constitution permits the State of Maryland to ban semiautomatic rifles that are in common use for lawful purposes, including the most popular rifle in America. Aug 21 2024 Petition for a writ of certiorari filed. (Response due November 12, 2024). Nov 12 2024 Brief of Anthony G. Brown, in his official capacity as Attorney General of Maryland, et al. in opposition submitted. Nov 26 2024 DISTRIBUTED for Conference of 12/13/2024. Dec 11 2024 Rescheduled. Jan 06 2025 DISTRIBUTED for Conference of 1/10/2025. Jan 13 2025 DISTRIBUTED for Conference of 1/17/2025. DISTRIBUTED for Conference of 1/24/2025. Feb 14 2025 DISTRIBUTED for Conference of 2/21/2025. Feb 24 2025 DISTRIBUTED for Conference of 2/28/2025. Mar 03 2025 DISTRIBUTED for Conference of 3/7/2025. (x7). Rescheduled x1. DISTRIBUTED for Conference of 3/21/2025. (x8). Rescheduled x1. Mar 24 2025 DISTRIBUTED for Conference of 3/28/2025. (x9). Rescheduled x1. Ivan Antonyuk, et al., Petitioners v. Steven G. James, In His Official Capacity as the Superintendent of the New York State Police, et al. No. 24-795 The questions presented are: 1. Whether the proper historical time period for ascertaining the Second Amendment’s original meaning as applied to the states is 1791, rather than 1868; and 2. Whether “the people” must convince government officials of their “good moral character” before exercising their Second Amendment right to bear arms. Jan 22 2025 Petition for a writ of certiorari filed. (Response due February 26, 2025). Feb 26 2025 Brief of Steven G. James; Matthew J. Doran in opposition submitted. Mar 12 2025 DISTRIBUTED for Conference of 3/28/2025. Mar 12 2025 Reply of Ivan Antonyuk, et al. submitted. Steven Eric Walker, Petitioner v. United States, et al. No. 24-6046 Questions Presented 1. In District of Columbia v. Heller, 554 U.S. 570, (2008), this Court rejected the government's belief that it has a plenary power over the individual's Second Amendment right to keep and bear arms. Id at 598-602. The Court further recognized the prohibition of government power over the right "is general” and that "[n]o clause in the constitution" could give to either the state or federal government "a power to disarm the people" as the Second Amendment is “a restraint" on both. Id. at 607. Question: Does the unqualified constitutional prohibition established by the Second Amendment delegate to government a free-floating power to infringe upon the right of the people to keep and bear weapons for purposes of security, safety, and self-defense? 2. In NYPistol & Rifle Assc. v. Bruen, 597 U.S. 1, 34 (2022), this Court held that the government must carry the burden of demonstrating whether the evidence supporting their gun control regulation is consistent with the principles underlying the Second Amendment, to overcome the presumption of protected conduct. Yet, there is not an established standard of proof. Question: Does the constitutional burden of proof require the government to demonstrate by clear and convincing evidence that their weapons regulations, are consistent with the principles underlying the Second Amendment? Mar 26 2024 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due December 27, 2024). Dec 27 2024 Waiver. Jan 09 2025 DISTRIBUTED for Conference of 1/24/2025. 1/27/2025 The motion of petitioner for leave to proceed in forma pauperis are denied. Petitioners are allowed until February 18, 2025, within which to pay the docketing fees required by Rule 38(a) and to submit petitions in compliance with Rule 33.1 of the Rules of this Court. No new petition was filed as of February 27, 2025. Feb 12 2025 Motion for reconsideration of order denying leave to proceed in forma pauperis filed by petitioner. Mar 12 2025 Motion DISTRIBUTED for Conference of 3/28/2025. Randy Price, Petitioner v. United States No. 24-5937 The question presented for review is not a model of clarity. It appears that this case is about 18 U.S.C. § 922(k)’s prohibition on possessing a firearm with an “obliterated” serial number. I. QUESTION PRESENTED FOR REVIEW The narrow question presented is whether Second Amendment protected “conduct,” for purposes of Bruen’s step one, consists of anything other than an individual’s possession or carrying of a bearable firearm. Nov 04 2024 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due December 9, 2024). Nov 13 2024 Waiver. Nov 20 2024 DISTRIBUTED for Conference of 12/6/2024. Nov 21 2024 Response Requested. (Due December 23, 2024). Dec 16 2024 Motion to extend the time to file a response is granted and the time is extended to and including January 22, 2025. Dec 16 2024 Motion to extend the time to file a response is granted and the time is extended to and including January 22, 2025. Jan 13 2025 Motion to extend the time to file a response is granted and the time is further extended to and including February 21, 2025. Feb 21 2025 Brief of United States in opposition submitted. Feb 21 2025 Brief of respondent United States in opposition filed. Mar 04 2025 Reply of Randy Price submitted. DISTRIBUTED for Conference of 3/28/2025. Raheem Morrissette, Petitioner v. United States No. 24-6415 QUESTIONS PRESENTED Is the lifetime ban on possession of firearms by all felons, codified at 18 U.S.C. § 922(g)(1), unconstitutional on its face, because it is permanent and applies to all persons convicted of felonies, even those who are not violent? And is it unconstitutional as applied to Mr. Morrissette, who has no violent convictions? Jan 27 2025 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due February 28, 2025). Feb 28 2025 Memorandum of respondent United States filed. Feds ask for a GVR because of Rahimi. Mar 10 2025 Reply of Raheem Morrissette submitted. Petitioner opposes GVR. Mar 13 2025 DISTRIBUTED for Conference of 3/28/2025. Elmer Alexis Montano Fuentes, Petitioner v. United States No. 24-6713 QUESTION PRESENTED I. Whether Congress may criminalize intrastate possession of a firearm solely because it crossed state lines at some point before it came into the defendant’s possession. Mar 04 2025 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due April 7, 2025). Mar 10 2025 Waiver of right of respondent United States to respond filed. Mar 13 2025 DISTRIBUTED for Conference of 3/28/2025.