SCOTUS Considers Several 2A Cases In First Conference Of Fall Term

Erin Schaff/The New York Times via AP, Pool

Today is the first conference of the fall term for the Supreme Court, and there are a number of Second Amendment-related cases for the justices to consider. In fact, there are currently five different cases set to be debated in conference today, ranging from a challenge to New Jersey’s ban on “large capacity” magazines to a lawsuit seeking to declare Hawaii’s ban on unlicensed open carry unconstitutional.

Each term the justices will accept only a handful of the thousands of petitions that come before them, so the odds of any one of these 2A cases being heard before the Court are pretty slim, but given that the Supreme Court will be hearing a challenge to New York’s carry laws in November, gun owners and Second Amendment supporters are hopeful that at least one of the cases heard in conference will join New York State Rifle & Pistol Association on the Court’s docket in the near future.

Here’s a quick summary of the cases that the justices will be considering today:

Russell v. New Jersey – a case very similar to the New York lawsuit. Reb Russell II applied for and was denied a concealed carry permit in New Jersey because he failed to show a “justifiable need” to exercise his right to bear arms. Attorney Evan Nappen argues that the state is violating Russell’s rights, and is asking SCOTUS to address whether the Second Amendment protects the right to carry arms outside the home for self-defense and whether “the government may deny lawabiding citizens their exercise of the right to carry a handgun outside of their homes by conditioning the exercise of the right on showings of need.”

Young v. Hawaii – We wrote about the Ninth Circuit’s decision upholding Hawaii’s ban on unlicensed open carry earlier this year, and I’m very curious to see what SCOTUS ends up doing here. Yes, the Court is already addressing the right to carry with the New York case, but the Young case is important because it deals not only with the ability to carry a concealed firearm, but to more generally carry a firearm in self-defense. According to the Ninth Circuit, neither the right to carry concealed or openly is protected by the Second Amendment, which gives SCOTUS the perfect opportunity to step in and set the record straight.

Weber v. Ohio – Mr. Weber was arrested and convicted on a misdemeanor charge of using a weapon while intoxicated, despite the fact that the shotgun he held when officers arrived at his home was unloaded. The Ohio Supreme Court upheld Weber’s conviction in a 4-3 decision, but the dissenting justices argued that the court used an improper standard of review, and Weber’s attorney is hoping that the U.S. Supreme Court agrees.

Roundtree v. Wisconsin – Leevan Roundtree pleaded guilty to two counts of failing to pay child support almost 20 years ago, and as a result, became a felon and lost his right to keep and bear arms. Twelve years later Roundtree was found in possession of a revolver and ammunition, and was charged with being a felon in possession of a gun. Now his attorneys are hoping that the Supreme Court will “address one of the most vexing issues that has arisen since District of Columbia v. Heller—whether, and under what standards, a non-violent felon seeking to keep a firearm in his home for self-defense may bring an as applied challenge to a law that permanently strips all felons of their Second Amendment rights.”

Association of New Jersey Rifle & Pistol Clubs v. Bruck – New Jersey’s first magazine ban took effect back in the 1990s, but the law was expanded a few years ago to not only ban the sale and manufacture of magazines that can hold more than ten rounds of ammunition, but to ban the possession of all legally-acquired “large capacity” magazines by New Jersey gun owners. Attorney Paul Clement, who’s representing the New York State Rifle & Pistol Association in the carry case that SCOTUS will hear in November, is also representing ANJRPC in their challenge to New Jersey’s magazine ban, and is asking the Court to answer two questions:

1. Whether a blanket, retrospective, and confiscatory law prohibiting ordinary law-abiding citizens from possessing magazines in common use violates the Second Amendment.

2. Whether a law dispossessing citizens without compensation of property that was lawfully acquired and long possessed without incident violates the Takings Clause.

I have no clue what will happen with any of these cases, but with the Supreme Court already slated to hear the New York case, it wouldn’t surprise me if the justices held on to Russell v. New Jersey and Young v. Hawaii until after its decision in NYSPRA v. Bruen is handed down next year. The challenge to New Jersey’s magazine ban, on the other hand, won’t be directly implicated in the Bruen case, and given that there’s a similar challenge to California’s nearly identical magazine ban pending in the Ninth Circuit, I’m hoping that the Court will grant cert and eventually strike down the law as a violation of the Second Amendment.

The questions posed in Weber and Roundtree are interesting, but Weber‘s question on the standard of scrutiny could and should be resolved in the pending New York case, so I wouldn’t be surprised if the Court passes on Mr. Weber’s challenge. As for Mr. Roundtree, while Justice Amy Coney Barrett has indicated that she believes a blanket ban on gun ownership for all those convicted of felonies is unconstitutional, the Court has rejected several other prohibited persons cases since she was confirmed to her seat on the High Court, and it’s unclear if there are three more justices willing to hear a challenge to the current federal law.

We know that the Supreme Court is going to consider one hugely important Second Amendment case this term. The question now is whether they’ll stop there or dive in to some of the other critical cases that are before them. Here’s hoping they take the plunge rather than shy away from these unresolved questions, and that they land on the side of the right to keep and bear arms instead of enshrining infringements to those rights as constitutional.