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?
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.
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?