Monday marked the start of a new term for the Supreme Court, and justices didn’t wait long to send a Second Amendment case packing, though justices did hold over another case dealing with the right to keep and bear arms for consideration in an upcoming conference. On today’s Bearing Arms’ Cam & Co, we take a closer look at the latest actions by the Court, as well as a couple of other 2A cases worth keeping an eye on.
SCOTUS denied cert in a case called Zoie H. v Nebraska, which dealt with both Second and Sixth Amendment issues. The plaintiff in this case was challenging a 2018 state law that disenfranchises anyone found by a juvenile court to have committed certain crimes from exercising their constitutional right to possess a firearm until age 25. As plaintiff’s attorney and former U.S. Solicitor General Paul Clement pointed out in his petition to the court:
While the legislature accompanied that new criminal prohibition with a requirement that the juvenile court inform a juvenile of the Second Amendment consequences of an adverse adjudication, it did not amend its laws to require a right to trial by jury for offenses that can result in a loss of Second Amendment rights well past the age of majority. The net result is that Nebraska deprives individuals of their Second Amendment rights as a collateral consequence of an adjudication in which it deprives the accused of a right to a jury trial.
In the decision below, the Supreme Court of Nebraska held that neither the Second nor Sixth Amendment precludes that result, reasoning that because the automatic loss of Second Amendment rights is imposed as a collateral consequence of the adjudication, and not as a direct criminal punishment, it does not implicate the Sixth Amendment at all. In so holding, the court undermined both constitutional rights and broke sharply with decisions from this Court and others.
Unfortunately, there weren’t the four votes on the Court to accept the case, so the decision by the Nebraska State Supreme Court will stand. SCOTUS did hold over another Second Amendment-related case for another conference this Friday, however, giving Second Amendment advocates a glimmer of hope that the Court could hear a case dealing with the right to keep and bear arms this session.
The case of Rodriguez vs. San Jose involves a woman named Lori Rodriguez, who called police back in 2013 to report that her husband was behaving erratically. Rodriguez’s husband was placed under a mental health hold and the responding officers told Rodriguez that she had to turn over possession of all of the legally-owned firearms in the home to authorities, even those registered in her name.
Rodriguez’s husband was released from the hospital a week later, but for the past seven years the city of San Jose has refused to return her firearms to her, even though she’s complied with California law regarding the storage of her firearms. The courts have even told her that she’s fine to purchase new firearms to replace the ones seized by San Jose police, but so far no court has compelled the city to return Rodriguez’s legally owned guns.
While the court considers Rodriguez’s petition, there are two other Second Amendment-related cases worth highlighting that are either pending before the Court or will likely arrive there in a few months.
The first is a case called Torres vs. United States, which involves a challenge to the lifetime prohibition on firearms ownership by those convicted of non-violent felonies. Last week the Firearms Policy Coalition, along with the Second Amendment Foundation, Firearms Policy Foundation, California Gun Rights Foundation and Madison Society filed an amicus brief with the Supreme Court urging them to take up the case, arguing that Israel Torres, who was convicted of aggravated driving under the influence in 2004 and 2010, should not have permanently lost his right to keep and bear arms as a result.
“There is no tradition of disarming peaceable citizens. Nor is there any tradition of limiting the Second Amendment to ‘virtuous’ citizens. Historically, nonviolent criminals who demonstrated no violent propensity were not prohibited from keeping arms. Indeed, some laws expressly allowed them to keep arms.
“Thus, using history and tradition to interpret the Second Amendment’s text, as Heller did, “the people” who have the right to keep and bear arms include peaceable persons like Torres.”
Judge Amy Coney Barrett, President Trump’s nominee to fill the Supreme Court vacancy left by the death of Ruth Bader Ginsburg, has also argued that the history and tradition surrounding the Second Amendment precludes the automatic revocation of the right to keep and bear arms of those convicted of non-violent felonies, and Barrett could conceivably be on the bench to hear the case if the Supreme Court accepts it.
It’s also worth keeping an eye on the Young vs. Hawaii case, which is currently before the Ninth Circuit Court of Appeals. An en banc panel of 11 judges recently heard oral arguments in the case, and if the panel upholds the state of Hawaii’s ban on openly carrying a firearm without a license (a license that no civilian has ever received), that case will be heading to the Supreme Court as well. If, on the other hand, the Ninth Circuit rejects the arguments by the state and strikes down the law, it’s possible that gun control advocates will urge the state to take the loss and keep the case out of the Supreme Court, which has been their strategy for several years now.
The Supreme Court will have no shortage of Second Amendment cases to choose from in the near future, but whether or not they’ll accept any of them is still an open question. The Court has already punted on nearly a dozen 2A-related cases this year, but if Barrett is confirmed to the high court in a few weeks she could likely end up being the crucial vote needed to get the court to begin hearing gun cases in earnest.