Reading the tea leaves of what may be going on behind the tightly closed doors of the Supreme Court is always a dicey proposition. However, it’s becoming increasingly clear to me that the Court is indeed gearing up for a major overhaul of Second Amendment jurisprudence.
As TTAG readers will recall, the Court granted cert earlier this year on New York Rifle & Pistol Association v. City of New York. Some TTAG commenters poo-pooed the significance of that case, opining that because it only addresses a narrow aspect of NYC’s ultra-restrictive firearms laws, it won’t likely be of any real significance for the rest of us.
I have long viewed the case as a classic “test case” that could be the vehicle for the Supreme Court to slap recalcitrant lower courts into line, probably by declaring that laws that materially impact Second Amendment rights must be subjected to strict scrutiny. (When laws are subject to constitutional “strict scrutiny,” they almost never survive the challenge.)
This week yielded another indication that something big in Second Amendment law is indeed afoot. Rogers and Association of New Jersey Rifle and Pistol Clubs v. Grewal is a test case that is a head-on challenge to New Jersey’s “may issue” system of concealed carry licensure…which in reality is “no issue” for anyone but the politically connected. Like the First, Second, and Fourth Circuit Courts of Appeals, the Third Circuit refused to take the Supreme Court’s Heller decision seriously, and rubber-stamped the New Jersey laws.
The plaintiffs filed a cert petition, powerfully calling out the Third Circuit and other lower courts for essentially ignoring Heller. The usual suspects (including a collection of over twenty state Attorneys General) have filed amicus curiae briefs in support.
New Jersey, on the other hand, declined to file a response to the cert petition. That’s not unusual, because the vast number of cert petitions don’t have a prayer. Parties thus often choose not to expend resources filing a response to something that has less than a 1% chance of being granted – especially given that if a cert petition is granted, they will have the right to file a brief on the merits.
The cert petition was scheduled to be considered at the Court’s conference today. However, a couple of days ago, the Court directed New Jersey to file a response (due March 21) to the cert petition.
What does this portend? Obviously, if the votes weren’t there to overrule the Third Circuit, the Court could (and likely would) have just denied the cert petition, as it has done on many post-Heller cases. It’s possible that the request for a response came from a member of the anti-2A wing of the Court, as a way of temporarily delaying a grant of cert. It could also be someone like Chief Justice Roberts recognizing that cert is likely to be granted, and, for public relations reasons, wanting New Jersey to be officially heard before the Court does so.
My best guess is that the pro-2A wing of the Court knows something big is likely coming in NYSR&PA, and thus is setting up to hold this and other pending 2A challenges until NYSR&PA is decided. Thereafter, the Court will grant all those “held” cert petitions, and summarily send all of them back for rehearing under whatever new standard is announced in the NYSR&PA ruling (hopefully, strict scrutiny or even something stronger).
We’ll see. In the short-term, we definitely should expect to hear a lot more wailing and gnashing of teeth from the other side as they realize that the walls are closing in.