The Supreme Court released its orders from the first conference of the fall term on Monday morning, and didn’t accept either of the Second Amendment-related cases that were under consideration.
The Court rejected one case outright while hanging on to the other for at least another week, which is a positive sign for those hoping the justices will agree to hear the lawsuit filed by the National Rifle Association over the actions of Maria Vullo, head of New York’s Department of Financial Services. As the NRA’s attorneys (including UCLA law professor Eugene Volokh) contend, Vullo’s “backchannel threats, ominous guidance letters, and selective enforcement of regulatory infractions—to induce banks and insurance companies to avoid doing business” violates the First Amendment rights of the organization and its members.
The Second Circuit Court of Appeals ruled against the NRA in its lawsuit, but in its cert petition the Second Amendment group maintains that the appellate court got it wrong, and if the Supreme Court doesn’t set things right the decision will empower more bureaucrats like Vullo to go after organizations they find distasteful.
The Second Circuit also concludes that “it was reasonable for Vullo to speak out about the gun control controversy and its possible impact on DFS-regulated entities” because of the “general backlash” against the NRA “and businesses associated with [it],” which “was intense after the Parkland shooting.” Thus, the Second Circuit holds that a “general backlash” against a controversial speaker might justify pressuring companies to stop doing business with the speaker, purportedly because public “backlash” regarding “social issues” could “affect New York financial markets” amid an “age of enhanced corporate social responsibility.” I This language underscores that the Second Circuit accepts that Vullo was acting as a regulator—not merely speaking out as a speaker—in making her statements. Otherwise, the question whether Vullo’s Guidance Documents and Press Release were “reasonable” or not would be irrelevant. Government officials, and even government agencies, are free to speak unreasonably as well as reasonably, if all they are doing is speaking rather than threatening.
But, more importantly, the Second Circuit’s reasoning eviscerates the First Amendment, giving government regulators free rein to selectively target unpopular speakers in the name of “tak[ing] action to address key social and environmental issues.” Such a rule would let government officials create a heckler’s veto over controversial speech: gin up outrage over any viewpoint related to “social issues,” and speakers advocating that viewpoint can be financially deplatformed. Yet both this Court and the lower courts have repeatedly rejected the notion that the government’s pursuit of its regulatory goals might justify blacklisting unpopular speakers.
NRA v. Vullo wasn’t on today’s orders list, which means the justices will keep the case in conference for at least another week. We don’t know the reason why that’s the case, but it could be that one or more of the justices are looking to find a fourth colleague to agree to grant cert. It could also be that the Court has rejected the case, but has given dissenting justices time to write a piece explaining why they would have accepted the lawsuit. Heller and Bruen were both subject to multiple conferences before SCOTUS granted cert, however, so I’m still viewing this development with a small degree of hope that the same will be true for NRA v. Vullo.
Meanwhile, if the Court is going to weigh in on whether ammunition magazines are considered “arms” under the Second Amendment, it’s not going to use KCI USA v. Eighth Judicial District Court of Nevada, Clark County, et al as its chosen vehicle. That case involves a civil lawsuit filed against KCI USA for making the magazine used in a shooting in Nevada in 2019. KCI claimed immunity under the Protection of Lawful Commerce in Arms Act, contending that the magazines it manufactures are “component parts” of firearms and therefore protected under the PLCAA. The Eighth Judicial District Court in Clark County, Nevada disagreed, however, and its decision was upheld by the Nevada Supreme Court.
On Monday the Supreme Court rejected KCI’s request to hear the case, leaving those decisions intact. With challenges to bans on “large capacity” magazines already well underway in the First, Seventh, Ninth, and D.C. Circuit Courts of Appeal, however, the Court has no shortage of upcoming cases to address whether or not magazines are “arms” or merely “accouterments” as well as the constitutionality of the magazine bans themselves.
In addition to the repeat appearance of NRA v. Vullo, this week’s conference is also expected to include discussion of Gazzola v. Hochul. Attorneys for the plaintiffs have requested an emergency injunction against New York’s new ammunition background check law, though I’d be surprised if the Court took that step given that its allowed New York’s carry restrictions to be enforced as well as Illinois’ ban on “assault weapons” and “large capacity” magazines despite similar emergency appeals.
Another case to watch is Range v. Garland. The Third Circuit concluded that the lifetime prohibition on gun ownership for those convicted of a crime punishable by more than a year in prison is unconstitutional, at least as it applies to Bryan Range and his non-violent conviction for falsifying income on a food stamp application more than two decades ago. If Merrick Garland and the DOJ are going to appeal Range to the Supreme Court attorneys have until Thursday of this week to submit their cert petition. I expect that they’ll meet that deadline, but there’s a slim chance that the Biden administration will choose to let Range stand rather than risk a Supreme Court decision upholding the Third Circuit and setting a nationwide precedent for non-violent offenders and the restoration of their Second Amendment rights. I’m not holding my breath that Garland will allow the Third Circuit’s decision to go unchallenged, but we’ll know one way or the other by the end of business on Thursday afternoon.