With Judge Brett Kavanaugh now Justice Brett Kavanaugh, the recent stalemate on Second Amendment cases at the Supreme Court Level will soon be over. Before, there were four solid pro-2A votes (Roberts, Thomas, Alito, Gorsuch), four anti-2A votes (Breyer, Ginsberg, Kagen, Sotomayor), and the unpredictable Anthony Kennedy as the swing vote.
Neither side knew which way Kennedy would swing, so neither side wanted to take a case that might go against them. As a result of the SCOTUS stalemate, some lower courts felt free to basically ignore Heller and McDonald, as they knew that the situation on the Supreme Court pretty much assured that they wouldn’t be reversed.
Those days are now passed. As Shannon Watts’ hyperbolic criticisms of Kavanaugh have thrown into sharp relief, Kavanaugh has been a robust Second Amendment supporter, and his recent ordeal isn’t likely going to make him particularly receptive to changing his mind.
Of course, the Supreme Court cannot simply start making declarations on issues of law. Appropriate cases need to bubble up from the lower courts. So, what’s in the pipeline that show what the new majority can (or is willing to) do and results in a full-throated endorsement of a broad reading of the Second Amendment?
Right now, here are three cases to watch:
New York State Rifle and Pistol Association v. City of New York
Currently pending before the Court is a cert petition on this issue: “Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause and the constitutional right to travel.” (The Second Circuit upheld the ban.)
Given the truly draconian nature of NYC’s gun control laws, this looks like a very strong candidate for a Second Amendment test case. New York’s response to the cert petition is due in November. Expect to see a decision by the Court on whether or not to take the case in early 2019.
Rothery v. Blanas
Also pending is a cert petition that challenges the California “may issue” CHL system as being arbitrary and capricious, especially in light of the law’s automatic carve-out for retired police officers. (The Ninth Circuit rejected that challenge to the law.) The Court directed California to file a response to the cert petition, which indicates that at least one judge on the Court is interested in this case.
This may be a vehicle for overruling Peruta, although the procedural posture of this case may not make it the ideal test case. Briefing on the cert petition is complete; we may see a decision on whether the Court takes the case before the end of the year.
Young v. Hawaii
This case may show how Kananaugh’s mere presence on the Court forces the lower courts to behave differently. In this case, a panel of the Ninth Circuit found that Hawaii’s ban on open carry, when coupled with its essentially absolute refusal to issue concealed carry permits, violates the Second Amendment.
Last month, however, the State of Hawaii filed a petition for the Ninth Circuit to rehear the case en banc. If granted, an en banc petition would have an eleven-judge panel rehear and decide the case. You may recall that this was the procedural method of overruling the originally pro-2A decision in Peruta.
With five pro-2A votes now on the Supreme Court, and Thomas and Alito loudly decrying the Ninth Circuit for routinely ignoring Heller, the threat of a near-certain cert petition may well force the Ninth Circuit to leave the panel decision in Young alone, rather than give the Supreme Court a chance to gut Peruta. On the other hand, the Ninth Circuit can sit on the en banc petition for as long as it wants, and it may well do so to avoid the issue entirely.
We’ll be watching closely, as you probably will be, too. Don’t touch that dial.