At its weekly conference on Friday, the Supreme Court had three cases that deal with aspects of the right to keep and bear arms to consider. The question is, will the Court accept any of them, or will they once again hold off on hearing a challenge to a gun control provision?
The three cases all deal with different aspects of state and federal gun laws, and each of them are significant in the questions that they pose to the Court.
In New York State Rifle & Pistol Association v. Bruen (formerly known as NYSPRA v. Corlett), the Court is being asked to weigh in on the state’s subjective-issue licensing laws for carrying a firearm. As former Solicitor General Paul Clement, who represents the plaintiffs in this case, argued in his petition to the Supreme Court:
New York prohibits its ordinary law-abiding citizens from carrying a handgun outside the home without a license, and it denies licenses to every citizen who fails to convince the state that he or she has “proper cause” to carry a firearm. In District of Columbia v. Heller, this Court held that the Second Amendment protects “the individual right to possess and carry weapons in case of confrontation,” and in McDonald v. City of Chicago, the Court held that this right “is fully applicable to the States.”
For more than a decade since then, numerous courts of appeals have squarely divided on this critical question: whether the Second Amendment allows the government to deprive ordinary law-abiding citizens of the right to possess and carry a handgun outside the home. This circuit split is open and acknowledged, and it is squarely presented by this petition, in which the Second Circuit affirmed the constitutionality of a New York regime that prohibits law-abiding individuals from carrying a handgun unless they first demonstrate some form of “proper cause” that distinguishes them from the body of “the people” protected by the Second Amendment.
The time has come for this Court to resolve this critical constitutional impasse and reaffirm the citizens’ fundamental right to carry a handgun for self-defense.
The question presented is: Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for selfdefense.
That circuit split became as wide as the Grand Canyon this week when the Ninth Circuit Court of Appeals ruled that the Second Amendment does not protect a general right to openly carry a firearm. Taken in conjunction with the Ninth Circuit’s earlier ruling that the Second Amendment does not protect the right to carry a concealed firearm, we now have a situation where the largest appellate court in the land claims that the right of the people to keep and bear arms is actually only a right to keep them.
The Supreme Court could wait for that Ninth Circuit case, known as Young v. Hawaii, but it doesn’t have to. It could take the New York case instead, given that the questions presented in both cases are ultimately the same: Does the average citizen possess a right to bear arms outside of the home for self-defense?
The second case considered by the Court in conference on Friday is Grewal v. Defense Distributed. Back in 2018, New Jersey Attorney General Gurbir Grewal sent a cease-and-desist letter to the organization warning that the group’s plans to set up a website and allow folks to download schematics that would allow them to build a firearm with their 3D printer would be a violation of New Jersey law. When Defense Distributed didn’t respond, Grewal launched a lawsuit seeking to shut down the group’s website, but Defense Distributed sued Grewal in federal court in Texas as well, arguing that the AG was trying to enforce an unconstitutional law. Defense Distributed filed a similar lawsuit in New Jersey as well, but that case has been on hold while the Texas lawsuit sorts itself out.
At the trial level, the judge sided with Grewal, but that decision was reversed by the Fifth Circuit Court of Appeals. Now Grewal wants the Supreme Court to weigh in and rubber stamp Grewal’s attempt to shut down the distribution of 3D files nationwide because the distribution of those files might violate New Jersey’s law. My guess is that the Court turns away Grewal’s request and allows the Fifth Circuit decision to stand.
The third and final case relating to the Second Amendment that the Court considered in its Friday conference is called Bolatete v. United States, and the question presented to the justices is “Whether federal criminal punishment of the receipt and possession of unregistered suppressors under 26 U.S.C. §§ 5861(d) and 5871 exceeds Congress’s power to tax under Article I, section 8, of the Constitution and violates the Tenth Amendment.”
In this case, Bernandino Bolatete was convicted and sentenced to 60 months in federal prison for possessing a firearms suppressor that had not been registered in his name under the National Firearms Act. Bolatete’s public defenders are arguing that Bolatete’s five year prison sentence for failing to register and pay the $200 tax stamp on the suppressor as required under federal law is a violation of his rights, because the NFA tax isn’t really a tax at all. Instead, they claim it functions as a “pretext to coerce conduct reserved to the police power of the States.”
While I’d love to see the Supreme Court take a stab at the National Firearms Act, and I do believe it’s absolutely an injustice for Bolatete to have received a five-year prison sentence for purchasing and possessing a suppressor, I would be fairly surprised if the Court agrees to take this case. On the other hand, it only takes four justices for the Court to accept a case, and maybe the votes are there to weigh in on the National Firearms Act right now.
If I had to guess, however, I’d say that the case with the best chance for acceptance is NYSPRA v. Bruen. If the Court turns down that case, they could still take the Young case when it comes before the Court for consideration, but why wait to address the issue when we know that there’s already a conflict among the lower courts and the question involves a fundamental civil right explicitly protected by the Constitution?
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