Supreme Court
The massive bronze doors of the Supreme Court. (AP Photo/J. Scott Applewhite)

Since McDonald in 2010 the People of the Gun have awaited the Court’s pleasure in granting cert to another Second Amendment case. We had only to wait six years when SCOTUS granted cert to Caetano v Massachusetts. SCOTUS again granted cert in New York State Rifle & Pistol Association v. City of New York in 2019 before declaring it moot in 2020.

What gives? Why has SCOTUS been so reluctant since McDonald to further define the scope of the Second Amendment-guaranteed right?

My original impression had been that SCOTUS would give plenty of time to the lower courts to litigate the issues that could help to further illuminate the right to keep and bear arms. Since Heller v DC in 2008, the lower courts have had ample time to explore the jurisprudence of the 2A. Especially so since the McDonald found the RKBA is incorporated by the due process clause to the states, thereby expanding enormously the legal ground to plough.

Two cases granted cert since then and just one adjudicated. My patience is exhausted.

Upon the untimely demise of Justice Ginsburg and the confirmation of her replacement, the balance on the Court has tipped to the “conservative” side. I had expected Second Amendment cert petitions would have been slated for the rocket docket. But that hasn’t happened. SCOTUS just denied cert to three petitions on the non-violent felon issue; one which Justice Barrett might have been expected to champion.

Prior to Justice Barrett’s ascension to the bench, it had been reasonable to suppose that the “conservative” Justices approached their power to grant cert judiciously. They had the power to grant cert, but not necessarily the votes to write a decision upholding the Second Amendment. This caution was understandable given the unpredictability of how Chief Justice Roberts might rule.

Such is no longer the case. So what gives?

Heller Gottlieb McDonald Supreme Court
Dick Heller (L), Alan Gottlieb (C), Otis McDonald (R) after the Court’s decision is announced in McDonald v. Chicago (courtesy Kevin Hulbert)

I trust that 2A rights lawyers have an excellent handle on what kinds of cases might do the trick. The question now is, What sort of case will the five conservative justices be willing to grant cert with the confidence that they will be in the final majority and write the decision?

The answer the People of the Gun and I seek is likely the most closely guarded secret in Washington. Like Dorthy, I dare to ask what might be behind the curtain. We have just two clues.

After being convicted for possession of a stun gun in Massachusetts, Jamie Caetano awaited the Court’s consideration from June 2015 to November when the Justices began to consider her petition. They re-listed her case six times through February of 2016. Justice Scalia died in that month whereupon she had to wait for three more re-listings until finally being granted cert.

SCOTUS unanimously decided to vacate her conviction and remand her case to the Supreme Judicial Court of Massachusetts telling them to take their reasoning and stick it where the sun don’t shine. Their holding was excoriating and the SCOTUS’s decision was unanimous.

What gives? If the relevant issues were so clear, why did it take 6 + 3 = 9 deliberations to finally grant the case cert? In any case, it was just nine months from application to decision…pretty fast for a Second Amendment case.

That was quite an accomplishment for a battered homeless single mother. Ms. Caetano wasn’t a noted Second Amendment tactician. She virtually stumbled into the Supreme Court after being tried and convicted of violating Massachusetts’ stun gun law. Appeals to Massachusetts courts failed, leaving her free to bypass lower Federal courts and petition for cert as the next step.

She didn’t need a Circuit split, therefore she didn’t need a win in any Circuit Court to make a split. Is there something we can learn here?

The SCOTUS’s decision was to grant, vacate, and remand the case with a mere per curium opinion noting Massachusetts’ violation of the law under the Heller decision. I concede that I’m no expert in the distinction between a per curium and a full-blown ruling. Nevertheless, Ms Caetano’s conviction was eventually reversed by the Massachusetts courts and states with corresponding laws immediately began reconsidering their statues.

The fact that the “arm” in question in the Caetano case — a stun gun — wasn’t a firearm seems unimportant. ‘Held: The Second Amendment is not just for muskets anymore.’ That seems to be the clear implication. As Justice Alito wrote,

Electronic stun guns are no more exempt from the Second Amendment’s protections, simply because they were unknown to the First Congress, than electronic communications are exempt from the First Amendment, or electronic imaging devices are exempt from the Fourth Amendment.

NYR&PA v NYC was quite different. This case didn’t involve an especially sympathetic appellant, nor even a conviction of such an appellant. Instead, it involved a remarkably clear and stupid infringement on the right to keep and bear arms.

Alas, the appellant was out-maneuvered. They seemed to have erred in not seeking even nominal damages in their original claim. Moreover, they chose to challenge a law which the respondent was willing to duck by repealing and revising it.

supreme court scotus second amendment protest demonstration
Courtesy Kevin Hulbert

We have very few clues from these two cases. Not much to go on. Nevertheless, there is probably no alchemy that’s subject to more intellectual analysis than what it takes to achieve cert from the Supreme Couert.

Plenty of people with enormous resources try to understand the mysteries of this art and science. Appellate law experts surely have their theories. Moreover, I have confidence that the Second Amendment Foundation and Firearms Policy Coalition (among others) have some insight.

I suspect that this kind of knowledge could be disclosed to the People of the Gun to good effect. Suppose — purely for illustration — that the Court readers bring us a case in which a LGBTQ defendant has been found guilty of unlawful possession of a slingshot, flintlock handgun, air-gun with a hollow-point projectile or a crossbow with a barbed bolt. Ideally, such a convict had been battered, has minor dependents or maybe even a failing vital organ.

The People of he Gun throughout the nation could look for such an a candidate defendant/appellant in an opportune venue, likely in New Jersey. Such a jurisdiction would be champing at the bit to take the bait. Conviction would be virtually guaranteed.

It’s doubtful that they would be willing to roll back all the laws necessary to render such a case moot as was done in New York City. If the defense bar throughout the blue states can’t find a case that fits, we could even consider making such a case.

Can we get this sort of insight out of our nation’s court-watchers? Would finding such a case and seeing it through be likely to further the cause of strengthening the Second Amendment?

36 COMMENTS

  1. The actual make up of the SC is:

    2 left wing activists –
    Sotomeyer
    Kagan

    2 actual “conservatives” (originalists?) –
    Thomas
    Alito

    4 Shape Shifters –
    Gorsuch
    Kavanaugh
    Barrett
    Bryer

    1 Chameleon –

    Roberts

    • Perhaps characterize Roberts as a Shape Shifting Chameleon. I suspect we’ve yet to see all the casuistic acrobatics he has in his bag.

      • “Perhaps characterize Roberts as a Shape Shifting Chameleon. I suspect we’ve yet to see all the casuistic acrobatics he has in his bag.”

        Not a bad suggestion. I chose Chameleon because no matter the pattern, the background, ever-changing colors, underneath it all Roberts remains a lizard.

  2. supreme court is worthless propaganda…I am 56 and will be dead before they pass any meaningful 2nd amendment ruling…

    • Just think…One of many ropes with a loop used to close a garage door was “mistaken?” for a Noose and got the panties of the entire NASCAR org. in a wad.

      On the other hand Gun Control is as racist as any noose and Gun Control gets standing in courts all over America. Statues are torn down or moved, drama queen marchers protesting a few bad cops while belonging to and harvesting votes for the Party of their slave masters. And that’s all while Jim Crow Gun Control hides in the shadows and gets a pass.

      Since Gun Control in any shape or form is rooted in racism and genocide the question for the USSC et al is…Why aren’t you doing your job and protecting and defending the US Constitution from Gun Control Rot?

  3. SCotUS is the wrong venue to address infringements of the 2A. This is a political issue, not a legal issue, and to be effective in restoring 2A rights it must be done in the Legislature. That’s where all of the infringements originated and where they must be dismantled, revoked, or shredded. Bringing case after case to court is merely a wheel spinning waste of time and money and only serves to enrich lawyers.

    • It is naive to suggest that states where the most egregious restrictions exist, all of which are essentially one-party (Democratic) states, will ever consider relaxing or overriding existing restrictions, particularly where they are all bent on every single greater restriction that they can imagine until the guns are banned completely. New taxes, new “assault weapons” laws, elimination of 80% builds, elimination of concealed carry permits, increasing the cost of hunting to the point that few will have the funds to do so, and so forth and so on. A legislative committee in the California Assembly will consider a bill tomorrow that will impose an additional 10% tax on handguns and ammunition, and 11% on long guns, over and above the 7.5% state wise sales tax (up to 9 in some places). Another committee will consider a bill that would make the personal information of gun owners (including names and addresses) available to gun violence researchers and unidentified “public interest” groups (doxing anyone?).

      No, the ONLY available remedy is the Supreme Court.

  4. Kavanaugh (and Coney-Barret) have young kids.

    It wouldn’t surprise me in the least if some Leftist scum whispered in his ear something like “I know where your children go to school”…

    • What of it? Certiorari does not depend on Roberts anymore. The only way for certiorari to be denied is if two among Thomas, Alito, Gorsuch, Kavanaugh, and Barrett voted to deny it.

  5. Long way? No. It will NEVER happen ever again
    . The Democrats could literally pass legislation banning all private gun ownership with no grandfathering deploying the full United States military to gl four ru dour to confiscate all guns in the United stares by force with the mandated execution and thusly extermination of every single gun owner in the country without trial and not just that but the complete and total execution and extermination of every dongle person in a home with a gun including going to every public school to round up and exterminate every single child of every single gun owner and SCOTUS STILL would not take it. And when that causes civil war to break our the Democrats pass further legislation not just mandating the extermination of every single gun owner, person and a gun owning household and every child in a gun only household but also the deployment of the full nuclear arsenal to exterminate The entire population of every single solitary state that opposes that as well as the complete and mandated total extermination of all United States citizens that oppose or resist that in any way shape or form up to and including the complete and total extermination of all human life in the United States minus themselves and illegals.

    The Supreme Court will NEVER take another gun case ever again. To the Supreme Court taking a Second amendment related case is actually worse then the Democrats mandating The complete and total extermination of every single gun owner, every single person in a home with a gun along with every gun owners child as well as every single United States citizen that opposes or resist that. To the supreme court the literal extermination of over 300 if not 330 million United States citizens at the hands of its own government via nuclear carpet bombing is actually preferable to them taking a second amendment case.

    • And now here’s ‘shawn’, pissing and moaning like Hicks in ‘Alien’. Doom and fvcking gloom, all day long. Seriously, son, why don’t you just lay down and show your throat and let them take your guns?

      Wanker… 🙁

    • I kinda like it. Not quite the UniverseEndingPerpetualFusionNeutrinoBlomb, but anything that gets rid of humans is a go.

      • The scary thing is, there are a few of us (humans that is) who agree with you. And, until the past few years, I thought that a lunatic fringe would remain on the fringe and not be able to wreck society. Short of your Neutrino Bomb of course. Another beautiful hypothesis slain by an ugly fact…

  6. The entire court is being held hostage by the threat of a 50-vote Senate eliminating the filibuster and “stacking” the court with another 5 justices all appointed by Biden / Harris. That would change the court balance to 9-5 in favor of liberalism for the next 30+ years. They issue a strong ruling on the election, guns, DC statehood or pretty much anything else substantive, they’re toast and so is the court for a very long time. Of course, everyone who has ever read a book or had to deal with a bully knows that appeasement doesn’t actually work.

    Still, I believe they are taking relatively innocuous cases for right now in the hope that Republicans get their act together and take back the House and Senate in 2022. If they do and the threat of “stacking” goes away, the Court will suddenly issue a lot of good opinions. Until then, work hard at the state and local level to take back the legislature. It is 19 months away people. Work hard now.

    And another thing… NRA – if you don’t get your act together and come out swinging for the fences, you’re toast too. Make-or-break time. Send a few more wheedling letters asking for cash when you humped the bunk so badly going into 2020 and you’re going to resemble the hobo outside the bankruptcy court shaking a cup and blowing it on Wayne’s viagra. Everyone knows. Nobody wants to help you support your habit. Get back to work. Then we’ll see about cash.

  7. @Mark,
    We have 9.5% total sales tax in Los Angeles County. Sux.

    @Gunny,
    The Legislature is very much a “legal” avenue. Note that they both begin with the root “leg”. Perhaps you meant “litigous”?

  8. SCOTUS is part of the government. The government is the problem. It follows as night follows day that SCOTUS is part of the problem. It is not part of the solution.

    • I wonder how long it will be before we see the Permitless Carry and 2A Sanctuary States form a new Confederacy?

  9. Considering that the SC refused to even hear any evidence on any of the man different issues with the 2020 election in multiple lawsuits, by multiple different parties it is obvious that the SC is fully compromised and useless. We will get GunnyGene’s Confederacy of 2A states before we get another positive SC decision. Fight in the legislatures. Fight in the municipal and county governments for 2A sanctuaries. If that fails then fight in the streets.

  10. I’m a little confused. Is the author suggesting that Caetano was picked up by the SCOTUS because the defendant was a battered woman? And that a similarly sympathetic defendant might also expect the same?

    I thought Caetano was heard because the conviction specifically addressed the 2nd Amendment, specifically the BS line about what technology the Founding Fathers were aware of. NYSPRA v. NYC boiled down to a States’ rights argument, which is why that case was heard.

    Maybe I’m missing the point, but suggesting that a case would be granted cert because the defendant was LQBTwhatever or in some way sympathetic doesn’t sound like a very solid argument.

  11. Really,its come down to the Supreme court to decide if We the People can have a stun gunm?
    Something ain’t right.

  12. Forcing the China Joe/Kama ‘Ho junta’s hand with a principled decision would be by far the best course of action they could take. Something needs to get the people up out of the stupor the leftilibral lotus machine wants to keep them in. Delay only gives the junta more time to wreck the economy beyond repair and turn more Americans into de facto wards of the state. Without economic freedom, political freedoms, no matter how robust, lose meaning.

  13. “If I make mistakes in spelling,
    Molly, dear,” said he,
    “Remember, it’s the pen that’s bad,
    Don’t lay the blame on me!”

    Good choice

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