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Tuesday came and went with the Supreme Court only taking one more case for its docket this year, an Ohio case involving voter registration. Gun rights activists had thought (hoped? feared?) that the Justices might be interested in hearing one of two cases touching the Second Amendment.

The first case, Peruta v. California, centers on whether or not there is a Constitutional right to bear a firearm on one’s person for self-defense purposes outside the home. This is particularly ripe for adjudication, as there is a split between the 9th Circuit, which held in Peruta that there is no such right, and the 7th Circuit, which held in 2012’s Moore v. Madigan decision, that there is.

The second case, Binderup v. Sessions, is a Third Circuit case that restored the right to keep and bear arms for two men who had previously lost those rights under federal law due to conviction for nonviolent misdemeanors in the 1990s. (We discussed this case at length earlier.)

Although the Court was just petitioned this year on the Binderup case, Peruta has been around the block a few times, repeatedly rescheduled for consideration. Supreme Court observers had been speculating that the Court was holding off on Peruta until Justice Scalia’s seat was filled; earlier in May, there was a signal that they may have been right.

John Ellwood at SCOTUSBlog reports that Peruta was relisted for consideration earlier in May, and it has repeatedly been relisted since then. In recent years, relisting seems to be a prerequisite for acceptance (77% of the cases heard in 2015 were relisted at least once,) so this could be a sign that, with Justice Gorsuch now seated and ready to go, the Court will start looking at Second Amendment cases again. Or they could be waiting to see if Justice Kennedy decides that he’s heard his last case.

Then again, a case that gets relisted for consideration repeatedly may just mean that the decision has been made to kick it to the curb and they’re just giving Justice Thomas time to write another blistering dissent about the Court’s dereliction of duty on the Second Amendment. The fact that the Court was shorthanded, of course, adds an extra layer of uncertainty over all of this.

As always, stay tuned…..

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  1. I’m not holding my breath waiting for anything good to happen. Very happy Trump withdrew from the socialist one world climate deal. Now he needs to nix the UN smallarms bs treaty. Sovereignty is a good thing!

    • But his speech is so full of lies on the climate deal it is not even funny. He attacks the fact that India can increase coal use, but fails to point out that their emissions per person is 9% of the U.S. China is around 37%. Regardless, nation sovereignty does not extend to doing harm to other nations. (Well is does, but don’t be passed when other nations do something about it) And if he cared about coal miners he should be looking at retraining and new industry, not trying to get back jobs that are disappearing from the switch to natural gas.

      • “And if he cared about coal miners he should be looking at retraining and new industry, not trying to get back jobs that are disappearing from the switch to natural gas.”

        You haven’t been keeping up on the news in coal country, binder.

        Coal mines are hiring, and they are offering signing bonuses for some positions:

        “Coal Country Is Back, Along With Signing Bonuses and Pay Raises”

        Yet another Trump campaign promise – *Kept*… 🙂

        • I’m going to be seriously disappointed it I don’t get something on guns. That’s right, I said me. Everything he’s done on guns so far has been for someone else. I want something that applies to me. I want it to be something big. Like reciprocity (the House version, the Senate version is crap by comparison), HPA, or some serious re-jiggering of the ATF’s processes.

          I don’t think he could have won without the NRA. It’s time he pay that debt. Not being Hillary is not good enough.

      • What is anyone really doing to stop emissions? Nothing. Cows and cars aren’t going anywhere. Europe can easily afford anything it wants because the US is their military. Easy for them to bark orders at us about protecting the environment when they’re rolling in free cash.

        • Internal combustion engine cars may be going somewhere. The cost of batteries is supposedly going way down and is half the cost of electric cars. With such a decrease, electric cars would cost less than normal cars and still be cheaper to drive. If all of this is true and holds out, then people will start buying electric cars instead of traditional cars.

          The Paris deal is still crap and if the Democrats wanted it to be law, Obama should have submitted it to the Senate and they should have ratified it back when they had a supper majority. They didn’t because the Democrats would not vote for it.

      • There was no “deal”, one man pretended he could commit 320 million people to send their money to failed socialist states and dictators, all by himself and without oversight of any sort. Nothing was even submitted to the Senate, because there was no chance it would be approved. This is not a dictatorship, and Omama never even sought my permission to give away my money to anyone, he has redefined the meaning of arrogance. Everyone is still completely free to build all the windmills they would like, if they really believe it’s important. I suspect that when they discover they will also be paying for them, it will suddenly be discovered that it was not really important.

  2. Just ducking the issues yet again knowing that they will have to vote for an affirmative decision on both cases. Pissing off somebody on the left. Giving the finger to a well deserving 9th District yet again.
    Ignore it and maybe it will go away.

    • Just FYI, it’s the 9th Circuit. District Courts are the trial courts and are named something like the Eastern District of [Some State]. Circuit Courts are the intermediate appellate courts between the trial courts and the Supreme Court.

  3. I’d feel much better if they wait until Kennedy is replaced by the next Trump appointee. Kennedy is just not reliable to follow the Constitution.

    • I agree generally. There are several 5-4 decisions in which Roberts was the one who joined the left in ignoring the Constitution.

  4. I believe they’re waiting on Kennedy to retire. His vote could never be counted on. When he’s replaced, Peruta will be heard.

    • +1. The pro-2A faction (Roberts, Thomas, Alito, Gorsuch) can afford to wait. If Kennedy decides to stay on, they will probably hold their noses and let Peruta stand (with another blistering Thomas dissent) rather than risk taking the case and having Kennedy flake out [again!] and vote to eviscerate Heller/MacDonald. (The other side has the same problem, only more so . . . after all, Kennedy did vote with the majority in Heller/MacDonald, so they don’t trust him either.)

      The odds are that at least one of Kennedy, Ginsberg, or Breyer will be gone in the next two years, and PDT can then cement a solid pro-2A majority. Once that happens, then they make the moves we’ve been waiting for.

    • 1. IF cert is granted, it will not be heard until next term any way. By then, Kennedy will (or will not) have retired. 2. They won’t hold the case indefinitely until Kennedy makes up his mind. So it is pretty much to the end of this term or never. There are vanishingly small opportunities for the issue to arise again, since the only circuits that have not weighed in already allow carry “in some form,” and allow “shall issue” CCW licenses even if they limit or prohibit open carry.

      • Grace v. Wreen (D.C.) is right on schedule for a near-term challenge, a little after Peruta.

        Not that I’m happy about having to wait, but for sake of honesty, it is lined up.

        There’s also Norman out of Fl on open carry as a right.

        So we do have other opportunities.

    • When doe the term officially end?

      As you and others are aware, the rumor is Kennedy announces in June.

      Since Cert. hasn’t been outright denied yet, there is some thin hope yet, as I understand it…

      • Justice Kennedy filled all of his clerk positions for the next term. It would be an unusual thing to do if you planned to retire after the end of the current one.

  5. There’s a semi good chance that a case here challenging the magazine ban might hit the CO SC, and I think if it does, there’s a really good chance that we will win. If it does get overturned, it could very easily be used as a decision toward removing nationwide bans (i.e. NYC, CA, MA, etc..). Keep watching.

    • It will just lead to another circuit split, since the 4th has already weighed in, and NY and NJ are solidly in the capacity limit class, as is California as of July 1 for all mags, including grandfathered ones, all three of which are in solid progressive circuits that will affirm limits. Just a guess, but I think that courts will deal a lot less deferentially with magazine capacity limits than other limits on 2A rights–and the liberal courts give those no deference at all against a “public safety” rationalization.

      • Is Californiia offering compensation for the ban on previously grandfathered mags? If not, isn’t there a 5th Amendments “Takings” issue?

        If you want to stimulate the economy and crush my credit cards, just over-turn the Connecticut AWB.

        Of course, then I will be stuck with umpteen low-cap mags.

        • No and no. Owners were given an opportunity to sell them to a local FFL that would take them (for sale out of state) or sell them thelselves out of state, or just ship them to someone who lives out of state. After July 1 they are a nuisance as a matter of law, and the State is not required to pay anyone anything for abating a nuisance. The law on this is pretty clear.

          There is, however, a pending lawsuit on the ban, and the fifth Amenment is raisedirrespective of the fact that this argument will surely fail. I haven’t read the rest of the complaint, so I don’t know what other grounds are asserted.

      • Wouldn’t an appeal from Colorado’s Supreme Court be to the Supreme Court and not the 10th Circuit? I know that the Supreme Court can take appeals from a state’s highest court if the question is one of federal law. I don’t know if there is some other appellate from a state’s highest court.

  6. I have the feeling that SCOTUS wants to be out of the 2A business, except for Thomas and Alito who would love to tackle a 2A case like Peruta.

    Kennedy is a weak sister. Roberts wants to go down in history as the Peacemaker Chief Justice. Gorsuch is the rookie who will be seen and not heard. And the leftists, well, they’re afraid that somebody might actually read the Constitution and decide that it means what it says and not what the left wants it to say.

    • Always suspected Roberts, not Kennedy, may be the weak sister. Especially after the ACA decision…. but that’s just my own speculation of course.

      • Why choose one?

        Why not choose two?

        They’re both hallmarks of the FAILED bush adminstrations, and why the god emperor we elected is the ONLY way forward for the republican party, instead of the elitist corporatist shillls who were only interested in our votes bt not actually creating the policies that should follow such votes.

    • “I have the feeling that SCOTUS wants to be out of the 2A business”

      All they have to do is rule on the definitive meaning of the word “infringed”, and they’re out.

  7. I don’t blame them. As others have said, Kennedy needs to go first. I’d rather see the 2A get some more solid SCOTUS wins than anything. SCOTUS made law is probably the hardest kind of law to overturn. We need to be sure we can win, and once we do, revel in the horrible noise the antis will be squealing…

  8. There is no split with the 9th circuit and the 7th circuit.

    The 9th circuit court of appeals en banc said that there is no right to concealed carry in public in the Peruta case. The 7th circuit court of appeals in Moore said that Illinois can ban concealed carry as per the Heller decision. The 9th circuit did not consider whether or not there is a right to openly carry a firearm in public because the plaintiffs in Peruta did not seek to openly carry a firearm. Instead, they argued that California can, should and must ban Open Carry in favor of concealed carry.

    The Peruta cert petition does not claim that Moore created a split with Peruta. No cert petition has ever claimed that the Moore decision held that there is either a right to carry a concealed weapon in public or that there is a right to carry “in some manner” including concealed.

    Instead of relying upon obviously uninformed, or perhaps even deceptive, articles such as this one, read the briefs and petitions for yourself at my website ->

    FYI, there is now a split for the first time but not because of the en banc Peruta decision. The split was created when the Florida Supreme Court published its decision in Norman v. State of Florida which is also at my website ->

  9. I’d like to see the conventional content of judicial opinions expanded: not just “no”, but explicitly “If you want to do that, get yourself a law that looks something like this: …” Bloomie’s retirement hobby of legislating for others through purchased regulation & opinion could really benefit from that. Or rather, we’d benefit. He’d have less to do in his twilight years. Maybe take up shuffleboard.

    “If you want to do that, get a law that says something other than: “… the right to keep and bear arms shall not be infringed.” For your specific preference, you need to fix “right” (or “keep”, “bear”, “arms” or “infringed” depending on what they’re trying – ed.) Since this is the US constitution, you need an amendment. The way to do that is right in the thing – you can find that for yourself. (To be clear, for this court to recognize whatever you write, it has to be a duely-enacted constitutional amendment. Wilson making some speeches, or Roosevelt, or Bush, or even Obama, isn’t enough.)

  10. There is no split between the 9th and the 7th. The en banc panel in Peruta said that there is no right under the Second Amendment to carry concealed weapons in public (which is 100% correct) and also explicitly stated that it did not address the question of open carry since that had not been before the court (which is also 100% correct).

    The question “whether there is a right under 2A to carry weapons in *some* (i.e. either open or concealed) manner outside the home” that the pending Peruta cert petition now asks SCOTUS to answer was not before the 9th. SCOTUS is a court of review, not of first view, hence there is no reason to grant cert in that case.

    • (which is 100% correct). No it’s not.

      The right to carry arms in Merry Old England was limited to the right to carry weapons in a manner as to not cause great alarm in the public. Concealed weapons, being unseen and unknown, cannot cause great alarm in the public. The crime referred to in Heller, which is where the “unusual and dangerous” language comes from is a ban on carrying weapons in a way that causes something between a simple battery and a riot. It was common for travelers to go about with a firearm in their pockets.

      Google the paper “Dangerous and Unusual Misdirection: A look at the common law tradition of prohibiting going armed with dangerous and unusual weapons to the terror of the people as cited in District of Columbia v. Heller” by Mr. Daniel R. Page. The subtitle aptly describes what the paper is about.


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