The Supreme Court’s fall term is officially underway, and we’ve already seen the Court dispose of three of the Second Amendment-related cases that it considered in conference back on September 27th. In the Court’s first orders of the fall term, justices declined to hear several cases dealing with prohibited persons and the right to keep and bear arms, as well as a challenge to the state of New Jersey’s carry laws.
Here’s a quick look at the cases the Supreme Court won’t be hearing this term:
Russell v. New Jersey – a case very similar to the pending challenge to New York’s carry laws that the Court will hear next month. 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 argued that the state is violating Russell’s rights, and asked 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 law abiding 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.”
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.
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. His attorneys were hoping that the Supreme Court would choose to “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.”
I’m not exactly surprised that the Court chose not to hear a prohibited person case, because they’ve already avoided taking several other cases dealing with the same subject in recent months. The outright denial of cert in the Russell case is somewhat surprising, though, given that the Court could have simply held on to the case until after its decision in the pending challenge to New York’s carry laws has been issued. The Firearms Policy Coalition’s Rob Romano did offer one possible explanation for the Court’s decision.
NJ argued that the petitioner "did not raise a Second Amendment challenge at the state level." Maybe that's why they denied this but not Young?
— Rob Romano (@2Aupdates) October 4, 2021
In fact, the Young case was one of two other Second Amendment-related cases that Supreme Court did not take action on during its first conference of the fall term.
Young v. Hawaii – In Young, the Ninth Circuit Court of Appeals upheld Hawaii’s ban on unlicensed open carry earlier this yea, and did so in a bizarre fashion; giving more credence to laws that were put in place before Hawaii became a state than to the Bill of Rights itself. According to the Ninth Circuit, neither the right to carry concealed or openly is protected by the Second Amendment, and that gives SCOTUS the perfect opportunity to step in and set the record straight.
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: “whether a blanket, retrospective, and confiscatory law prohibiting ordinary law-abiding citizens from possessing magazines in common use violates the Second Amendment” and “whether a law dispossessing citizens without compensation of property that was lawfully acquired and long possessed without incident violates the Takings Clause.”
I would not be surprised at all if we don’t hear anything about these two cases until after the Court’s decided New York State Rifle & Pistol Association v. Bruen, and frankly I’d be shocked if they simply deny cert to the Young case entirely given that the Ninth Circuit has gone out of its way to erase the right to bear arms from the Second Amendment. I still think it’s far more likely that they’ll eventually remand Young back to the Ninth Circuit with orders to revisit the case in light of the Bruen decision, but that doesn’t explain why the Court wouldn’t do the same with the Russell case out of New Jersey (unless Romano’s right and the Court accepted the state’s argument that plaintiffs didn’t raise the Second Amendment as an issue earlier in the litigation).
We’ll get a better idea about what the Court is going to do when we see the list of cases scheduled for this Friday’s conference. If Young v. Hawaii and ANJRPC v. Bruck are re-listed, then the odds that the cases will simply be held over until after the Bruen decision is handed down drop dramatically, and the chances that they’ll be denied outright grow much larger.
Neither the Young or ANJRPC case were re-listed for this week’s conference, which means they’re likely being held pending the decision in NYSPRA v. Bruen. I’m taking this as a positive sign that at least four justices believe the Bruen decision is going to substantively address the standard of review that should be used in Second Amendment challenges, which would have an impact on both the New Jersey magazine ban case, and the Hawaii right-to-carry case.