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…..