Marquette Law Review Volume 102 Article 3 Issue 2 Winter 2018
The exN t Big Gun Case: The Resurrection of the Second Amendment at the New Roberts Court
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Repository Citation The Next Big Gun Case: The Resurrection of the Second Amendment at the New Roberts Court, 102 Marq. L. Rev. 309 (2018). Available at: https://scholarship.law.marquette.edu/mulr/vol102/iss2/3
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D s ’ OREY OT C N AMENDMENT O Heller .2(D O . 102, N THE NEXT BIG GUN CASE: OL MARQUETTE LAW REVIEW MARQUETTE AT THE NEW ROBERTS COURT - MULR V THE RESURRECTION OF THE SECOND Unsure of how to proceed, legislatures pass firearms laws which are both The Supreme Court has denied certiorari in around one hundred Second M K IOCCHETTI IOCCHETTI C Y and plenty more involving the equally ambiguous Fourteenth Amendment. Of the four neglected Amendments—the latter three are rarely invoked provisions—the in a petition for certiorari. Second, The Second Third, Amendment, on Ninth, the only and hand, Tenth often plays a starring role. lawsuits lawsuits either recently decided or docketed in the lower courts. The facts of from stray cases these guidance of applicable lack the And so, self-defense. for the home in and used a predicament. in judges and lawmakers places over- and under-inclusive. These are immediately challenged in court, often before enactment. statements Some Presiding opinions. judges written in from proceed to how all on confusion twelve their express relevant circuit courts are not-so-subtle prods at the Justices to show more courage and accept the next big gun case. courageously. Over the past five years, the Justices have many decided tough The irony is cases revolving of six around the ten vague that the Roberts Court typically acts Amendment cases since deciding deciding since cases Amendment then, the Justices have issued only one bona brought state fide and firearms local laws decision, withi which same time, the right to keep and bear arms continues to loom in thousands of * Assistant Professor of Business contact to Ethicsfree feelPlease Denver. of University M.A. Law, andof SchoolUniversity Duke J.D. Denver, of Legal Studies, Daniels College of [email protected]. at Business,comments or questions with Ciocchetti Professor University Volume 102 Volume 2018 Winter 2 Number C 40986 mqt_102-2 Sheet No. 5 Side A 01/29/2019 13:38:24 01/29/2019 A Side 5 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 5 Side B 01/29/2019 13:38:24
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- MULR V C s C. Case at the a Firearms for Call HEAR Factors The D. Conclusions: from A. Tidbits 371 ...... Bans Magazine Capacity & Large B. Assault Rifle C. Where Courage Fails the Roberts Court: The Neglected Second Second The Neglected Roberts Court: the Fails Courage C. Where & Guess to Legislators Requires Amendment Second Looming A A. by Are Perplexed B. Judges A. The Courage of the Roberts Court to Solve Constitutional Riddles Constitutional to Solve Court Roberts the of A. Courage The the for Ripe Cases Critical Revealing Framework: B. HEAR The A L C ’ continue ELLER WO WO
HE Most Most Second Amendment cases easily surmount this high hurdle. The H NTRODUCTION I IOCCHETTI IOCCHETTI IV. T III. restrictions on assault weapons/large capacity magazines and public carry. Each should it case, gun big next its takes Court Roberts configured newly the When come from these areas of unsettled law. in promise its fulfill to In Court Supreme the end, it is past time for the Amendment I. II. T 310 310 Therefore, the Court should show similar courage and further elaborate on Heller coalesce: factors four when certiorari grant expeditiously should Court the that (1) lawmakers are hamstrung in deciphering constitutional boundaries; (2) echoes of confusion ripple through lower courts lacking definitive guidance; (3) an appropriate case places the issue squarely matter. the settle to on able referee authoritative best/only the is Court Supreme the table; and (4) the Article identifies two areas in greatest need of clarity: prohibitions or C 40986 mqt_102-2 Sheet No. 5 Side B 01/29/2019 13:38:24 01/29/2019 B Side 5 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 6 Side A 01/29/2019 13:38:24 s 6 .: Its Its NST (June (June (Dec. (Dec. 3 I IMES ATO ATO T ANON , C IOLENCE C V in 2008. in 2 ,N.Y. UN G ). The majority said little little said majority The Second Amendment 15, 2013 ! ...... 385 ...... ! McDonald McDonald v. City of REVENT MENDMENT MENDMENT P PRIL PRIL major A 311 311 TO . /A OMING TR C S I L. C ECOND S ASE ASE NSTITUTE NSTITUTE C I IFFORDS UN ) ) 1/17/2019 8:29 PM , G G District District of Columbia v. Heller ATO ATO decision, the justices left for another day just what kinds kinds what just day another for left justices the decision, Second Amendment protection. protection. Amendment Second was a groundbreaking case to be sure. But, But, sure. be to case groundbreaking a was IG IG ELETE ,C D B Heller OT s limited guidance, the controversial decision , Teixeira v. County of Alameda, 873 F.3d 670 (9th Cir. 2017) (en (en 2017) Cir. (9th 670 F.3d 873 Alameda, of County v. Teixeira , N right to use handguns for self-defense to state and O THE NEXT BIG GUN CASE EXT ESURRECTION OF Justices Extend Firearm Rights in 5-to-4 Ruling 5-to-4 in Rights Firearm Extend Justices N HAPIRO Silvester v. Becerra, 138 S. Ct. 945 (2018) (asking whether California whether (asking (2018) 945 Ct. S. 138 Becerra, v. Silvester :R .2(D McDonald S Teixeira v. Alameda County, 138 S. Ct. 1988 (2018) (asking whether the O See,e.g. Heller HE 5 Litigation Summary Litigation Heller Supreme Court Ducks Key Second Amendment Issue—for Now :T LYA . 102, N Weapons Ban ...... 373 ...... Ban Weapons OL (Apr. 15, 2013, 11:21 AM), https://www.cato.org/blog/supreme-court-ducks-key- AM), 11:21 2013, 15, (Apr. Heller -- I , Adam Liptak, ruling is an enormous symbolic victory for supporters of gun rights, but its short-term short-term its but rights, gun of supporters for victory symbolic enormous an is ruling 1 at 791. 791. at 1. The Fight Moves to the States: The Typical State/Local Assault Assault State/Local TheTypical States: the to Moves 1. Fight The 374 ...... Begin the Lawsuits 2. Let 379 ...... Regulations Carry 3. Public applied applied 4 IBERTY , - MULR V NTRODUCTION L I cert.denied sub nom. cert denied sub nom. nom. sub denied cert .See Post- .See .Ilya Shapiro, Shapiro, .Ilya .See id. .See .See, e.g. .See, [T]he scope of the individual right that the SecondindividualAmendmentthethethatprotectsright [T]he scope of I. ONCLUSIONS 2. (2008). 570 U.S. 554 3 1 4. (2010). 742 U.S. 561 5 6 The Supreme Court has denied certiorari in around one hundred Second M K ATO AT IOCCHETTI IOCCHETTI C Y The bottom line is that the Court has issued only two only issued has Court the that is line bottom The Amendment Amendment cases since deciding C 2018] 2018] V. C C second-amendment-issue-now [https://perma.cc/ER5T-6RFL]. [https://perma.cc/ER5T-6RFL]. second-amendment-issue-now is crying out for . . . resolution. [T] so long that the Court will be able to bear the legal incongruity and practical is effect practical unclear. As in the only only other bona fide firearms case Chicago since the 1930s, 28, 28, 2010), https://www.nytimes.com/2010/06/29/us/29scotus.html the that (stating [https://perma.cc/L775-WJ6F] local local firearms laws. 2017), 2017), Final.pdf [https://perma.cc/UYN4-FZ64] (conducting research to find that the Supreme Court denied eighty-two such cases as of December 2017). http://lawcenter.giffords.org/wp-content/uploads/2017/12/PHLS-December-17-Update- Since that time, more Second Amendment cases, some notable,metthe same fate. banc), ten-day waiting period for gun purchases violates the Second Amendment). Amendment). Second the violates purchases gun for period waiting ten-day Second Amendment provides standalone rights to firearms dealers); Silvester v. Harris, 843 F.3d 816 (2016), contributed contributed little to the substantive of interpretation the Second Amendment. beyond beyond reiterating of gun control laws can be reconciled with more than that there is a rightto keep handguns in the home for self-defense. 40986 mqt_102-2 Sheet No. 6 Side A 01/29/2019 13:38:24 01/29/2019 A Side 6 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 6 Side B 01/29/2019 13:38:24 , M K U.S. C Y NGLISH ERVICES I would would I 8 S ) in search Caetano v. EWS See See N Heller s next big Second :E COM 10 insisting upon insisting MSNBC. ” ). [102:309 [102:309 , ICTIONARIES D really worth in a short per curiam opinion vacating and and vacating opinion curiam per short a in edent from the Justices means that lower courts A well regulated Militia, being necessary to the Heller IVING Few constitutionalguarantees suffer from L 7 ) ) 1/17/2019 8:29 PM , Justice Thomas lamented the lack of attention given to this to given attention of lack the lamented Thomas Justice , , 138, S. Ct.945 at (Thomas, J., dissenting from the denial of ELETE D ) (internal citation omitted). ) omitted). citation (internal To be clear, applies this inattention OT N O A line to get into the court for the historic arguments began forming forming began arguments historic the for court the into get to line A MARQUETTE LAW REVIEW LAW MARQUETTE .2(D XFORD O a lower court treated another [enumerated constitutional] right so cavalierly, cavalierly, so [enumeratedconstitutional]right another treated court lower a e to the proper interpretation of the Second Amendment. Silvester v. Becerra v. Silvester Instead, these disputes immerse the American public in an . 102, N 9 Supreme Court Considers to “Right Court Considers Supreme Bear Arms as followers of the Second Amendment Sisters and Maryland Shall Issue.Org OL , See Silvesterv. Becerra , O little guidanc - MULR V guns kill more guns, less crime. the the arguments raged inside, advocates of gun rights and opponents of gun violence .See, e.g. .See, . amend. II. In In II. amend. . .Treat 8. The Second Amendment reads in full: 9 7. The Roberts Court did briefly reaffirm 10 This stagnant state of affairs is likely to change under the newly configured configured newly the under change to likely is affairs of state stagnant This This This dearth of precedent illustrates that Second Amendment battles at the ONST IOCCHETTI IOCCHETTI security security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Massachusetts, 136 S. Ct. 1027 1027 (2016). Ct. 136 S. Massachusetts, remanding a remanding around case a revolving law Massachusetts prohibited stun that thisguns; however, case added very Roberts Roberts Court. In fact, credible predictions of a resurrected and increasingly C Supreme Court are like spotting a Javan rhino in the wild: a rare treat. Litigation Litigation treat. rare a wild: the in rhino Javan a spotting like are Court Supreme (Mar. 18, 2008), court-considers-right-bear-arms/#.Wz6Mq6kna34 http://www.nbcnews.com/id/23688073/ns/us_news-crime_and_courts/t/supreme- [https://perma.cc/7NJA-G2HU] (reporting while that demonstrated outside [the] court . . . . Members of the Brady Campaign chanted to Prevent Gun Violence 312 312 years. eighty past the over decisions C shouted shouted enumeratedright. if that (writing certiorari) I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this we in right this I should Court. do believe not Because is a Amendment disfavored Second the area, be in the business of rights are which choosing constitutional only at the Supreme Court level. The lack of nationwide prec are forced to do the interpretive legwork (i.e., read between the lines of of workable interpretations and solutions. Along the way, these judges their opinions are and certainlyanalysis may cognizantbe overturned or that rebuked in the Supreme Court Amendment case. government officials. Gun cases inevitably circus-like atmosphere grab in Washington our D.C. attention and throughout and the create nation . at . . the docket. hits one that occasion extraordinary the on least a extraordinary extraordinary fusion of mundane eighteenth century history with increasingly data, dispassionate of reams with fervor human considerable technology, lethal and agonizing tragedies with gnashing of teeth and lofty promises from 2018). These cases are more likely to give thoughtful observers indigestion rather than great pleasure. pleasure. great than rather indigestion observers thoughtful give to likely more are cases These 2018). https://en.oxforddictionaries.com/definition/treat[https://perma.cc/7DNF-PQLP] (last visited Oct. 17, have granted certiorari in this case. two days earlier and extended more than a block by early Tuesday. early by block a than more extended and earlier days two 40986 mqt_102-2 Sheet No. 6 Side B 01/29/2019 13:38:24 01/29/2019 B Side 6 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 7 Side A 01/29/2019 13:38:24 , ). ). we we can a lot of t neither t neither The close close The 11 ). ). s weekly conference conference weekly s (June 29, 2018), 2018), 29, (June (Dec. 10, 2015), 2015), 10, (Dec. ). ). CTION continued their continued practice of BLOG .A 313 313 EGIS L This string of denials occurred occurred denials of string This , SCOTUS FOR 14 . (June 27, 2018), 2018), 27, (June , was relisted at the Justice the at relisted was , note 11 (stating that there has been been has there that 11 (stating note NST I Supreme Supreme Court by the Numbers: Kicking Off the OST supra , ) ) 1/17/2019 8:29 PM Goodbye Justice Kennedy and Goodbye Gun Control Chief Justice John Roberts Is Now the Supreme Court’s Relist Relist Watch ,NRA ELETE D ). .P often often after relisting the petition (i.e., tabling the With Kennedy Retirement, Trump Can Secure and Strengthen a OT So, the Justices perpetually punted gun cases out N ); -year tenure brings with it a conservative shift in the the in shift conservative a it with brings tenure -year ASH 13 O THE NEXT BIG GUN CASE .2(D , Kimberly Robinson, BNA BNA (Sept. 13, 2017), https://www.bna.com/scotus-numbers-kicking- O ] (discussing the changes at the Supreme Court and noting that, s highest court may well start imposing its will on the gun measures of all 50 50 all of measures gun the on will its imposing start well may court highest s creates the opportunity for President Trump to appoint a replacement who will will who replacement a appoint to Trump President for opportunity the creates This bump to the right will not only affect rulings in many . 102, N , W , John Elwood, 12 Friedman v. City of Highland ParkHighlandof City v. Friedman Goodbye Justice Kennedy See, See, e.g. (June 27, 2018, 6:04 PM), https://www.huffingtonpost.com/entry/opinion-segall- PM), 6:04 2018, 27, (June OL , Eric Segall, Opinion, , , Christopher Ingraham, OST LOOMBERG LOOMBERG P as as long as Trump a nominates to conservative the right of [Chief Justice] the Roberts, ,B - MULR V cases before granting them. s retirement retirement s before the petition was denied). The Justices usually deal with cases at the conference in in conference the at cases with deal usually Justices The denied). was petition the before .See, e.g. .See, .See, e.g. .See, .See, e.g. .See, .See, e.g. .See, 14 13 12 11 M K UFFINGTON IOCCHETTI IOCCHETTI C Y relisting speculation about why the five court conservatives, including Kennedy, have not reviewed any any of the reviewed not have Kennedy, including court conservatives, five the why about speculation four the neither that is theory common most The restrictions. gun various upholding cases court lower vote. to going was Kennedy how knew liberals, four the nor Kennedy, than other conservatives 2017 2017 Term balance of ideological power on the court is about to undergo a considerable shift. considerable a undergo to about is court the on power ideological of balance six six times which the petition arises. However, the current issuing Court any grants. has been relisting cases a few times before https://www.washingtonpost.com/news/wonk/wp/2018/06/27/chief-justice-john-roberts-is-now-the- it that (stating [https://perma.cc/XR7L-AEN3] supreme-courts-swing-vote/?utm_term=.dd72fbf0b429 is clear that much much to the dismay of a few members of the Court. Justice Thomas, in kennedy-gun-control_us_5b33fc4ee4b0cb56051ec177 kennedy-gun-control_us_5b33fc4ee4b0cb56051ec177 [https://perma.cc/JVV5-43JP] Goodbye [hereinafter Justice Kennedy expect the Supreme Court the to rifles, so-calledassault on bans of validity startthe is issue the Whether courts. reviewinglower the in percolating a few of the more important gun ofwaitinglength periods peoplebeforeguns or requirementsconcealed-buy people canreceive for to control cases now nation our permits, carry Supreme Court. n57982088117/ [https://perma.cc/7H79-6Q4A] (stating that the Justices https://www.nraila.org/articles/20180629/with-kennedy-retirement-trump-can-secure-and-strengthen- a-pro-second-amendment-supreme-court [https://perma.cc/RLA5-HPME] Kennedy (stating that help reinvigorate the stalled progress in Second Amendment jurisprudence. Justice Swing Vote 2018] 2018] invigorated Second Amendment canon now make national news. C decision decision for a future conference) for weeks. of their weekly conference controversial controversial areas of the law but also the types of cases the Justices agree to hear. the four nor conservative-leaning the four liberal-leaning Justices would vote Kennedy Justice how predict could side neither because cases gun major hear to would vote on the merits. http://www.scotusblog.com/2015/12/relist-watch-75/ [https://perma.cc/D9ND-UA4K] (stating that a Second Amendment challenge to a Highland Park, Illinois city law magazines, banning capacity assault rifles and high- states states and cities many and towns. Pro-Second Amendment Supreme Court H 40986 mqt_102-2 Sheet No. 7 Side A 01/29/2019 13:38:24 01/29/2019 A Side 7 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 7 Side B 01/29/2019 13:38:24 M K C Y 2000. 2000. really worth really at1999 and a critical Constitution than Constitution than Id. Id. 19 ). If a lower court treated ). ). ted by our by by all accounts a more [102:309 [102:309 . The calculus changes has been a conservativeahas been powerhouse, 17 ) (internal citation omitted); Jackson v. (June 9, 2018), at A1, A1, at 2018), 9, (June Heller 802(2015) (Thomas, J., dissenting from the 52 (2018) (Thomas, J., dissenting from the IMES T on it. respectfully dissent.I rights are no less protec less are no rights this Court would intervene. But as evidenced by our by intervene.evidenced asButwould Court this to join Justices Thomas, Alito, and Gorsuch Gorsuch and Alito, Thomas, Justices join to ) ) 1/17/2019 8:29 PM ). y depend ELETE 18 , N.Y. D [d]espite [d]espite the clarity with which we described the Second OT For thoseFor of us workwho in marbled halls, guarded constantly by N O MARQUETTE LAW REVIEW LAW MARQUETTE note 12 (citing a study on Supreme Court ideology that shows Chief Moderating Force as a Lawyer, a Conservative Stalwart in Political , 138 S. Ct. at 945. 945. at Ct. S. 138 , .2(D O supra supra . 102, N OL At one point, he went as far as to describe the Second 16 I would have granted certiorari in this case. this in certiorari granted have would I Adam Adam Liptak, and joined by Justice Gorsuch in one instance, has repeatedly Silvester v. Becerra, 138 S. Ct. 945, 945 Ingraham, Peruta v. California, 137 S. Ct. 1995, 1996 (2018) (Thomas, J., dissenting from the denial a jurist often to the right of Justice Kennedy politically Kennedy Justice of right the to often jurist a s core protection for the right of self-defense, lower courts, including the ones here, have have here, ones the including courts, lower self-defense, of right the for protection core s 15 - MULR V Silvester v. Becerra v. Silvester .See .See .See .See .See .See .See 17. 18 16 19 15 The confirmation of Judge Brett Kavanaugh IOCCHETTI IOCCHETTI of certiorari) (showing that Justice Gorsuch joined Justice Thomas in licensedifficult(whichisafirearmspublic acarrying Californiawithout of in basically thatthe banlaws case challenging a series of wrote: Thomas Justice obtain)). to antiquated seem might Amendment Second the of guarantees the force, police dedicated and vigilant a and superfluous. But the Framers made a clear choice: They reserved to all that the Americans citizens right its to denies State a while idly by stand should we think not do I self-defense. for arms bear ma lives very their when particularly right, Fights and on the Bench denial of certiorari) (stating that: Amendment failed to protect it. Because Second Amendment Amendment Second Because it. protect to failed other rights enumerated in that wouldI document, have granted this petition. another right so cavalierly, I have little doubt that that doubt little have I cavalierly, so right another I in Because Court. this right is a disfavored Amendment Second the area, in this inaction continued do not believe we should be in the business of choosing which constitutional rights are insisting upon, Cityand County ofSan Francisco, 135 S. Ct. 2799, 2799 issuing around 300 opinions. . . . He has written countless decisions applauded by conservatives on topics including the Second Amendment, religious freedom and campaign finance. But they have welcomed his particularly vigorous opinions hostile agencies, to a administrative central concern of movement. legal conservative modern the denial of certiorari) (criticizing the rational-basis review-like standard applied by the Ninth Circuit to a law a California requiring wait ten-day to a purchase and firearm stating: [https://perma.cc/FM7Z-NXCC] (stating that Judge Kavanaugh https://www.nytimes.com/2018/07/09/us/politics/brett-kavanaugh-supreme-court-trump.htmlKavanaugh Judge that (stating [https://perma.cc/FM7Z-NXCC] 314 314 particular C on the conservative side of the Court increases the odds of Second challenges. Amendment This be may more accompanied by reaffirmations, successful clarifications, and potential expansions of Roberts Justice Justice Roberts than as far Justice conservative more slightly Kennedy, below the most conservative time). over neutral towards more trending and Thomas, Justice Amendment. consistently conservative judge conservative consistently 40986 mqt_102-2 Sheet No. 7 Side B 01/29/2019 13:38:24 01/29/2019 B Side 7 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 8 Side A 01/29/2019 13:38:24 , The and ). To be ]. But the ). Heller that that experts did . There . is There a chance McDonald and and Lawrence Friedman, (Mar. 1, 2018, 2:00 PM), PM), 2:00 2018, 1, (Mar. Roberts has an eye on how McDonald See See ILL Heller H 315 315 and and HE the Justices themselves. This This themselves. Justices the , T Heller note 3 (counting 1,230 Second Amendment Second Second Amendment cases are now supra , was decided in 2008). 2008). in decided was (June 29, 2018), 2018), 29, (June Lacking the discretion to avoid most of of most avoid to discretion the Lacking 21 ) ) 1/17/2019 8:29 PM EWS s legitimacy, .. . . In lightof [his] pragmatic approach[], Heller N ELETE D OT Roberts, Right of Kennedy, is New Center of the Supreme Court N O THE NEXT BIG GUN CASE Recent Rulings Show How Hard it is to Predict High-Profile Court LitigationSummary .2(D O Roberts voted in favor of gun rights in two cases that held that Americans RESS P Heller . 102, N Post- OL , Elise Hu, , Mark Sherman, , A prominent political blog studied the issue and wrote an article article an wrote and issue the studied blog political A prominent and and therefore controversial 22 20 . ). ). - MULR V , NPR (June 29, 2012), .See, e.g. e.g. .See, .See, .See, e.g. .See, hehill.com/opinion/judiciary/376284-the-supreme-court-and-its-big-second-amendment- 21 22 20 In the midst of this transformation at the Supreme Court, thousands of cases cases of thousands Court, Supreme the at transformation this of midst the In With the rapid changes on the Court, however, it seems clear that M K SSOCIATED IOCCHETTI IOCCHETTI C Y McDonald cases challenging firearms regulations since since regulations firearms challenging cases worse than computer models when it came to predicting [Supreme Court]rulings, . .. Supreme Supreme Court and its Big Second Amendment Problem alleging Second Amendment violations have been recently decided or are now or are decided recently been have violations Second Amendment alleging looming in the lower federal courts. bear arms. bear http://t problem [https://perma.cc/BCN3-SRLQ] (stating that Chief Justice court the affect may decisions constitutional one can see why Roberts . . . might be hesitant for the Supreme Court to further address the right to Decisions https://www.npr.org/sections/itsallpolitics/2012/06/28/155925331/recent-rulings-show-how-hard-it- [https://perma.cc/9LDN-Q8LT] (highlighting is-to-predict-high-profile-court-decisions a few faulty predictions and citing a study by a Washington University professor that showed 2018] 2018] vote to vitalize the individual right to keep and bear arms in both C https://www.apnews.com/f799c72b81b64f5aa4e80b1edf17312d https://www.apnews.com/f799c72b81b64f5aa4e80b1edf17312d Justice that Chief (stating [https://perma.cc/39HR-WE83] court has since rejected repeated attempts to expand on the right of gun ownership, in part because Roberts and Kennedy would not join the other conservative justices to take on a new in both case.vote a critical also provided Kennedy Justice clear, have the right to have guns, at least for self-defense in their homes [ the true, is that If cases. gun controversial in Court the embroil to want not does Justice Chief the that fifth vote that gun rights proponents foresee may not materialize. is an inefficient and nationwide exasperating problem, especially when the way benefits of clarity and authoritative to address chain. the up appeal one rest interpretations an urgently important important poised exilefrom to in move the lower courts to the stage. main Accordingly, this Article ponders the next big gun case at the Supreme Court. It is key to anything about how the Justices predictions. will act. Even the experts make faulty self-defense. armed Amendment Second the on authority definitive A 40986 mqt_102-2 Sheet No. 8 Side A 01/29/2019 13:38:24 01/29/2019 A Side 8 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 8 Side B 01/29/2019 13:38:24 M K C Y hear more more hear will a site that allows people to to people allows that site a and the the Second, Third, Ninth, [102:309 [102:309 should s current docket and then compete against against compete then and docket current s Frustrated with Fantasy Football? Try the II II & III), identifies two areas in the gun ) ) 1/17/2019 8:29 PM Bill Bill Mears, (Nov. 17,2014), https://fivethirtyeight.com/features/why- Cue the next big Second Amendment case to ELETE See 25 D IGHT . E Why the Best Supreme Court Predictor in the World Is Some OT N O MARQUETTE LAW REVIEW LAW MARQUETTE HIRTY T .2(D O , CNN (Dec. 16, 2009), IVE that that should win the race to become the next big gun case 24 assault assault weapons bans and limitations/bans on the public ,F However, this type of predictive evaluation is increasingly increasingly is evaluation predictive of type this However, Roe Roe v. Wade . 102, N 23 . OL Section II.A. II.A. Section Of the amendments left untouched left amendments the Of , Oliver Roeder, 26 , than it is to overrule cases upon which the public has relied for - MULR V See infra See Why Why the Best Supreme Court Predictor in the World Is Some Random .See, e.g. .See, 24. Looking to become a Supreme Court nerd or just have a strong desire to try and predict how how predict and try to desire strong 24. a have just or nerd Court Supreme a become to Looking 25. (1973). 113 U.S. 410 26. 23 Part I sets the stage by contrasting the historical rarity of Second In In an effort to contribute to the conversation, this Article posits that the Part II is about courage. More specifically, the courage of the Roberts Court Court Roberts the of courage the specifically, More courage. about is II Part Heller IOCCHETTI IOCCHETTI as decades, such as regulation regulation realm carry of weapons (Part IV), and concludes with a list of issues specifically: More V). (Part thought public ripe for further academic and Amendment cases with and favorable the finds it precedent current strengthen to begin political Court Supreme moment. transformed Will a significantly dismantle precedent it deems wrongly decided? This Article posits that newly formed the majority will do more of the former and less of the latter. It is such and clarify precedent, strengthen to task doctrinal easier acertainly much framework framework that identifies the types of firearms cases in desperate need of the recently recently reconfigured Supreme contentious Court Second Amendment cases (Parts I & II), introduces and applies a both critical critical in a nation seeking desperately effective gun policy in accord with the better. the faith, good in dilemma this pondering minds more The Constitution. Besides, these endeavors are also an awfully fun way to spend time in deep, thought. productive the-best-supreme-court-predictor-in-the-world-is-some-random-guy-in-queens/ the-best-supreme-court-predictor-in-the-world-is-some-random-guy-in-queens/ [https://perma.cc/57BP-4HSC]. FantasyScotus.LexPredict.com at look should You rule? will Justices the Court the on cases merits the of each of outcome the predict the crowd and a computer algorithm. Supremehttp://www.cnn.com/2009/CRIME/12/16/scotus.journal/index.html [https://perma.cc/XT98-FZVK]. Court 316 316 titled, Guy in Queens C Random Guy in Queens in GuyRandom elaborate on and clarify the meaning of the right to keep and bear arms. arms. and bear to keep ofright the meaning the clarify and on elaborate has Court The years. five past the over cases controversial and difficult hear to the in amendments ten the ofsix invoking petitions certiorari of dozens tackled Bill of Rights and many others interpreting the often-ambiguous Fourteenth Amendment. 40986 mqt_102-2 Sheet No. 8 Side B 01/29/2019 13:38:24 01/29/2019 B Side 8 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 9 Side A 01/29/2019 13:38:24 -split; and and -split; : Where other 317 317 : Where confusion over how to ) ) 1/17/2019 8:29 PM ELETE : Where an postured appropriately case D OT N ONFUSION O THE NEXT BIG GUN CASE C .2(D O : Where a constitutional provision is at issue and . 102, N OL AMSTRUNG AMSTRUNG GOVERNMENT ACTORS PPROPRIATENESS EFEREE CHOES OF the latter three are rarely the basis of any Supreme Court decision. Court Supreme any of basis the rarely are three latter the H in 2008. At a time when the lower courts need them the most, the the most, the them need courts lower when the time a At in 2008. E A R (H) to provide authoritative guidance. guidance. authoritative provide to the Court is the ultimate (or perhaps only) referee in position (one (one with a broadly applicable table; to the comes errors) procedural and no serious standing, fact pattern, clear plaintiff and split; circuit a major ofpart be not need case this note: (R) branches branches of authority; their government on boundaries constitutional unclear are of because hindered in their (E) job duties interpret interpret precedent reverberates throughout the appeals courts to the point where legal tests tiptoe around opaque Supreme rulings/dicta; Court (A) - MULR V Heller This This neglect causes lower court judges to fret about the proper M K IOCCHETTI IOCCHETTI C Y (3) advocates that the Court apply this framework and show similar towards resolve an equally enigmatic, but no less significant, Second Amendment in desperate need of attention. This so-called HEAR framework is composed of four factors. When all are present, a case is in critical need of the Supreme four four HEAR factors are easily identified appears to ducking a issue, controversial the desire to avoid be another divided bitterly case an amalgamation of to difficult very are cases gun that fact the and grounds, ideological on decided adjudicate. The Second Amendment is as c the of right the State, free a of security the to necessary being Militia, regulated Amendment Amendment is as important as any other. This state of affairs need not exist and, therefore, this Part: (1) commends the Roberts Court for exhibiting the moxie to continually tackle this interpretative challenge outside Amendment. Over the past offew years alone, the the Justices have decided a Secondgreat many cases involving complex, politically charged constitutional provisions; the of area controversial particularly a when signal to framework a presents (2) 2018] 2018] Tenth and The Second Amendment, however, has been invoked in thousands of since cases Justices have predictably denied petition after petition and, thereby, failed to guidance. meaningful offer interpretation of the right to keep and bear arms and then come up with their own legal tests Second the and believe who conclusions. members four least at with These Court Supreme a opinions, by reversal of course, are subject to C 40986 mqt_102-2 Sheet No. 9 Side A 01/29/2019 13:38:24 01/29/2019 A Side 9 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 9 Side B 01/29/2019 13:38:24 M K C Y articulated articulated Heller Therefore, delving into into delving Therefore, 27 [102:309 [102:309 from every relevant federal federal relevant every from mal mal guidance to weigh these limited scope. Instead, the nation actually actually said on the potential regulation of ) ) 1/17/2019 8:29 PM Heller Heller to all different types of Second Amendment Amendment Second of types different all to ELETE D OT Heller Heller N O MARQUETTE LAW REVIEW LAW MARQUETTE These cases revolve around whether: (1) the Second .2(D O . amend. II. II. . amend. . 102, N OL ONST on how to extend - MULR V 27. U.S. C Part III adopts the HEAR framework and digs in. Employing a recent Part IV evaluates what A A final point is in order. This Article does not wrestle with whether the IOCCHETTI IOCCHETTI 318 318 C to regulate firearms and protect their inevitably citizens. lead to thousands of The lawsuits, many regulations of which they a provides arms bear and invoke keep to right the that doubt Thereis no Amendment. the pass Second of ownership for certain types below which level gun of protection heightened federal, state, or local governments may not regulate. After the right to possess and use arms for self-defense, contemporary plaintiffs are complaints. in their claims Amendment not Second foolish However, to bring there is also no doubt increasing safety and decreasing that violence. Pleadings the that invoke the Second government has Amendment a force judges compelling to use interest in interests in cases far outside of the history of this amendment and then providing a clear interpretation of such such of interpretation a clear providing then and amendment of this the history convoluted text is a major undertaking. This Part concludes, these however, reasons that are just not good enough and that Court. aSupreme has why America exactly are situations these sticky jurisprudential discussion the guide, a as Illinois Park, Highland from case ban weapons assault shows how all four HEAR factors are in play in cases. many The Second analysis begins with Amendment hamstrung state and local legislators seeking circumstances other than the right to possess and use a firearm for self-defense for self-defense firearm a use and possess to right the than other circumstances confusion the codifies also Part This home. the in circuit challenges. deserves an authoritative interpretation of the Second Amendment designed for for designed Amendment Second the of interpretation authoritative an deserves reiterates reiterates the need for Justices the to hear the next gun big case and concludes thought. public and academic further for ripe issues of list with a Second Amendment guarantees an individual right to keep and bear arms or a collective right to do so only when participating in an organized militia. arms and arms at arrives a then duo cases of overly for ripe the Amendment Second Amendment allows for the weapons banning and ammunition and (2) governments can impose burdens on or public severe analyzes briefly Part This restriction open. the in or concealed either weapons of carrying of assault-style will clarity more how explains and area each in case typical the of structure the increase legislative and judicial efficiency and better serve the public. Part V 40986 mqt_102-2 Sheet No. 9 Side B 01/29/2019 13:38:24 01/29/2019 B Side 9 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 10 Side A 01/29/2019 13:38:24 ). ). 28 EWTON EWTON . (Feb. 23, N AG M IMES DGAR DGAR 49 (1999) (arguing for for (arguing (1999) 49 E ONSTITUTION C The History and Politics of , 133 , ,N.Y.T ITHY ITHY IGHTS 319 319 . 3, 24 (2000) (taking the collective collective . the 3, (taking 24 (2000) P R This Article takes the more S EV With that understanding, this this understanding, that With 31 ETTER ETTER TO 29 . L. R ILL OF OF ILL Carl T. Bogus, Bogus, T. Carl B scope as the majority promised in ENT with MERICA Heller .-K A Brevity is an uncommon approach to to approach uncommon an is Brevity HI 32 C ) ) 1/17/2019 8:29 PM Heller , 76 RIGINS OF THE OF RIGINS ELETE ,O D OT NTERPRET EVY N I O THE NEXT BIG GUN CASE What Did the Founding Fathers Intend? W. L .2(D g g on the Constitution; I should like to point out that the O the individual right to possess and carry weapons in case of confrontation of case in weapons carry and possess to right individual the . 102, N EONARD EONARD L OL OURAGE TO OURAGE Section II.B. II.B. Section / 1954 at635. C HE T - MULR V The best way to make this type of case is to deal squarely with the law law the with squarely deal to is case of type this make to way Thebest .See id. id. infra .See .See .Irving R. Kaufman, Kaufman, R. .Irving .Compare .Compare 30 II. 30 31 29. District of Columbia v. Heller, 554 U.S. 570, 592 (2008) (holding that the text of the Second Second the of text the that (holding (2008) 29.592 570, U.S. 554 Heller, v. Columbia of District 32 28 The The Constitution paints with a broad brush. Even a cursory glance at -- President Dwight D. Eisenhower, L M K ISENHOWER ISENHOWER IOCCHETTI IOCCHETTI C Y on particulariti Second Amendment Scholarship: Primer A Scholarship: Amendment Second an individual rights view of the Second Amendment) Amendment) Second the of view rights individual an rights approach and demonstrating flaws in the literature arguing for an individual right). individual an for arguing literature the in flaws demonstrating and approach rights Amendment guarantees 1986), 1986), [https://perma.cc/85DC-FHSS]. https://www.nytimes.com/1986/02/23/magazine/what-did-the-founding-fathers-intend.html Instead, this Articledeals squarely withthe fact thatthe Supreme Court in approach clearly right individual the backed boundaries. constitutional within so do and violence gun against battle effective article article urges the Court to clarify E 2018] 2018] Spirited discussions of this battle abound and that ground has been covered. C either side. However, a reversal of the individual rights approach by the newly newly the by approach rights individual the of reversal a However, side. either composed Roberts Court appears very unlikely. as it exists (and will likely remain into the andfuture) not as some academics, politicians, and citizens, concerned others wish it to be. This is not to say that the debate over the Amendment individual is trivial versus or unwarranted. collective There meaning are very strong of arguments on the Second meaning meaning of the Consequently, no powers Constitution are exercised by the . . . government is except where (lawyers Court the Supreme by is approved such exercise what the Supreme Court says it is. 2008. 40986 mqt_102-2 Sheet No. 10 Side A 01/29/2019 13:38:24 01/29/2019 A Side 10 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 10 Side B 01/29/2019 13:38:24 , 35 M K of of To To See See C Y longer longer By By seealso ROJECT 34 Compare P California’s World World Average Finding Finding what Makes Promotion of Economic 772. 772. The United States s constitutions). 33. In fact, all fifty state in in the newspaper having the ONSTITUTIONS note [102:309 [102:309 . amend. Cal. Constitution Ctr., supra supra .C See our documentourranks countries 16525th), because they are restrictive and impose impose and restrictive are they because ONST , .C OMP bad .(Sept. 20, 2010), 2010), 20, .(Sept. Sarah Galer, Feature, Feature, Galer, Sarah which lays out the number of days prior to a a to prior days of number the out lays which LA HI The durability of this four-page four-page this of durability The or even states like Alabama (nearly A C 38 37 with (June (June 24, 2017), http://scocablog.com/californias- ) , C .457,474 (Nov. 17, 2014) (arguing that that (arguing 2014) 17, (Nov. .457,474 abama Constitution titled the titled abama Constitution CI ) ) 1/17/2019 8:29 PM ,https://www.india.gov.in/my-government/constitution- BLOG BLOG note 33. 33. note .S Americans tend U.S.to think the Constitution survived has ELETE OL 36 D NDIA ., https://codes.findlaw.com/al/alabama-constitution-of-1901/ I supra A LongA Constitution is a(Positively) Bad Constitution: Evidence OT , Most constitutions are long and dense. and long are constitutions Most N .J.P 33 O ,SCOCA ONST MARQUETTE LAW REVIEW LAW MARQUETTE SeCnttto Rankings Constitution See ). ). RIT OF OF , U. . B note 34. .2(D What What we found is that the more detailed constitutions are those that last . C O LA ONST , http://wordstopages.com/ [https://perma.cc/6ZAB-4774] (last visited July 11, 11, July visited (last [https://perma.cc/6ZAB-4774] http://wordstopages.com/ , , 46 supra . 102, N , A , C OL (providing data on 190 constitutions from which I calculated a a calculated I which from constitutions 190 on data (providing Though not the shortest constitution in the world ( world shortestthe the in constitutionnot Though - MULR V .See, e.g. .See, Se Cnttto Rankings .See Constitution .See Constitution Rankings Constitution id. .See .See .See, e.g. .See, 38 33 35 36 37 34. The Constitution of the United States contains 7,762 words including amendments and IOCCHETTI IOCCHETTI largest largest circulation in the county or municipality. objective costs on society that require redress. Constitutions Endure public public meeting of the Commission that public notice must be given 389,000 words and over 850 pages!). constitution-is-not-the-longest/ [https://perma.cc/GJ9C-BJ9A]. [https://perma.cc/GJ9C-BJ9A]. constitution-is-not-the-longest/ The global average is three times longer, closer to 23,000 words or the length of a law proper article. review summary summary of national values differs greatly from the lengthy tomes governing nations like India (over 146,000 words) constitutions in OECD countries undergo more frequent revisions, despite the fact that they are more they that fact the despite revisions, frequent more undergo countries in OECD constitutions difficult to revise. . .. [In addition,] the procedural hurdles for amendment included in a constitution require that any revisions to the constitution have the support of [and] . . . majorities. overwhelming that this simple fact implies that long constitutions are 320 320 chartering a government. C have longer founding charters. contrast, contrast, the United States Constitution weighs-in at just over 7,700 words. https://www.uchicago.edu/features/20100920_constitution of University law Chicago Tom Ginsburg, professor, of (interviewing and University Texas political that stating and Elkins, Zachary scientist, [https://perma.cc/EDZ2-ZF64] Ginsburg and Elkins discovered that for most countries, such vagueness is actually a weakness. this end, Ginsburg claims, . . . surprisingly quite longer, because it consists of strong, broad principles, with few details on how government should be run. Yet Yet run. be should government how on details few with principles, broad strong, of consists it because Cal. Constitution Ctr., india/constitution-india-full-text [https://perma.cc/VDN5-WXF2] (last visited July 11, 2018); 11, July visited (last [https://perma.cc/VDN5-WXF2] india/constitution-india-full-text and Industrial Development and by Industrial Development County Commission, [https://perma.cc/5MGB-QKTB] (last visited July 10, 2018) (showing that this state constitution has has constitution state this that (showing 2018) 10, July visited (last [https://perma.cc/5MGB-QKTB] 287 sections and 928 amendments). This would come out Pages to WordsConvert to over 850 single-spaced pages! in Al an the is 2018). amendment even There http://comparativeconstitutionsproject.org/ccp-rankings/ [https://perma.cc/F9EL-TPS9] (last updated Apr. 8, 2016) (displaying the extraordinary length of many of the TsebelisNardi,GeorgeDominicJ. world & from OECD Countries constitutions are constitutions longer than the United States Constitution. 22,290 words). words). 22,290 signatures. Constitution Is not the Longest 40986 mqt_102-2 Sheet No. 10 Side B 01/29/2019 13:38:24 01/29/2019 B Side 10 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 11 Side A 01/29/2019 13:38:24 . 39 HE HE EV , T .L.R , 28U.S.C. , TAN in in recent times, See, e.g.See, , 65 S Accordingly, this 40 321 321 [p]oliticization [p]oliticization of the Supreme Court causes the public confidence in the Court is low, the political political the low, is Court the in confidence public Politicizing the Supreme Court ) ) 1/17/2019 8:29 PM ELETE D § 1251 (stating that the Court has original and exclusive OT id. N Eric Hamilton, Hamilton, Eric O THE NEXT BIG GUN CASE the the backbone of American law. To apply broad .2(D O see also Why Why We Have the Most Polarized Supreme Court in History ); ); ). . 102, N a considerable challenge. challenge. considerable a especially especially if your desired argument is unlikely to win the day. OL (Mar. 14, 2016), https://theconversation.com/why-we-have-the-most-polarized- constitutional provisions; provisions; constitutional and circuit split; a meaningful absent even resolution, similar resolve towards an equally enigmatic, but no less continually continually tackle this interpretative challenge. Over the past few years alone, the Justices have many decided a great cases involving complex, politically charged (2) presents a framework to signal when a (3) particularly advocates that the Court apply this framework and show (1) commends the Roberts Court for exhibiting the moxie to - MULR V 35, 36 (2012) (stating that the perceived perceived the that (stating (2012) 36 35, 40. Jeffrey Segal, 39. The occasions where the Court must hear a case are few and far between. between. far and few are case 39. a hear must Court the where occasions The This This is tricky because individual cases nourish enduring and reliance- M K NLINE ONVERSATION IOCCHETTI IOCCHETTI C Y Clearly, Clearly, sacrificing a subjectively clarifying unsettled law takes uncommon courage. This is particularly true undesirable in policy result accused Court is the Supreme even where discord political profound of our era in favor of Instead, at least four Justices must desire to resolve thorny thorny to resolve and Justices four desire must legal Instead, at dilemmas least set abiding precedent. This inevitably means that taking tough cases must be very difficult inducing inducing precedent constitutional principles conscientiously, the Justices carefully parse obscure text, votes). five least evaluate at obtain cynic, a (to consensus gain caselaw, to seek and circumstances, connect history and No one can tradition force the to Court to do contemporary this difficult and consequential work. American public to lose faith in the Court, and when and Court, the in faith lose to publicAmerican and judiciary the between power of balance constitutional the to disrupt positioned well are branches branches. political the C O Constitution takes the exact opposite approach to laying out the particulars must operate inof that it avoids much how detail. the government coming cases redistricting from appeals hear to Court Supreme the (requiring (2012) 2284(a) 1253, §§ from three-judge federal courts); states). more or two between cases over jurisdiction 2018] 2018] document is extraordinary. simplicity renders precise cases individual applications of its ambiguous provisions in C ]supreme-court-in-history-55015 ]supreme-court-in-history-55015 [https://perma.cc/QCJ5-4SY8] (asserting that, unlike any time in our history, we are unlikely to see conservative Democrats or liberal Republicans on the Supreme Court. Part: Part: 40986 mqt_102-2 Sheet No. 11 Side A 01/29/2019 13:38:24 01/29/2019 A Side 11 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 11 Side B 01/29/2019 13:38:24 M K C Y at least until another [102:309 [102:309 This state of affairs causes far far causes affairs of state This 21 (4th Cir. 2017) (en banc) (recounting the Frustrated with the lack of bona fide fide bona of lack the with Frustrated ) ) 1/17/2019 8:29 PM rpretation of the right to keep and bear arms in in arms bear and keep to right the of rpretation This includes the Second Amendment ELETE 42 D OT N O MARQUETTE LAW REVIEW LAW MARQUETTE .2(D O . 102, N OL , Kolbe , v. Kolbe Hogan, 849 114, F.3d 120 significant, significant, Second Amendment in attention. desperate need of - MULR V Moreover, gun owners struggle to understand the scope of their right right their of scope the understand to struggle owners gun Moreover, . Now that people have the right to possess and use handguns in the home home the in handguns use and possess to right the have people that Now . .See, e.g. .See, 41 41 42. of course. presented properly When The thesis of this Part may be summed up like this: When the Constitution the When Constitution up be may thesis of The Part this: this like summed Clarity Clarity from the Court surrounding guns, though no panacea, is likely to IOCCHETTI IOCCHETTI court. meaning meaning would provide the greatest good for the greatest number of people. The current instability creates legislative and legal inefficiencies. Lawmakers laws such evaluate Judges parameters. constitutional uncertain around regulate without the benefit of guidance. definitive Like game a of slow-moving ping- on reversed be to only regulation firearms a upholds often court district a pong, appeal by a circuit court panel whose opinion is then by overruled an en banc 322 322 C to keep and bear arms wondering while why their most elected people leaders go are unable about to their adequately daily address the business solutions, public attention drifts to other policy issues mass shooting refocuses everyone Officials would learn how to regulate the public carry the learn of howOfficials to would carry public regulate and whether firearms open and/or concealed carry may be banned altogether. And, officials would grasp more firmly whether universal background checks This are new state of affairs constitutional. would decrease confusion and allow people to focus in on whether these types of firearms regulations are effective or need to be tweaked and perhaps repealed. Viewed more far matters from regulation firearms of boundaries this the out meting transparently vantage point, the Court case. gun big next the than who wins speaks in riddles, the Supreme Court should summon the courage to decipher its most vexing declarations. more pain than necessary. pain necessary. than more help state and local policymakers and would lawmakers cases firearms clarifying few a tackle example, For effectively. and efficiently this problem more allow officials to better understand whether assault rifles are protected arms when used properly for self-defense, for hunting, and/or for recreation. procedural history). procedural Heller for self-defense, the Justices should provide a blueprint to unravel the rest of outside time the all puzzles of types these solves Court Roberts The riddle. the Section. next the of focus the forms courage this context and firearms the 40986 mqt_102-2 Sheet No. 11 Side B 01/29/2019 13:38:24 01/29/2019 B Side 11 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 12 Side A 01/29/2019 13:38:24 , NPR ight ight to s] case violated the seldom a constitution- a seldom These freedoms data from 45 n, 138 S. Ct. 1719, 1731 (2018) 1731 1719,Ct. S. 138n, 323 323 electronic s cell phone location records collected collected records location phone cell s Do sincere religious 47 But, What do such soaring soaring such do What But, or regulations on hostility to a religion or or religion a to hostility on regulations or treatment of [the baker 46 s t informed [to some extent] by the fundamental ) ) 1/17/2019 8:29 PM ). ). 48 ELETE D OT N O THE NEXT BIG GUN CASE constitution-creation processes, said that there is .2(D 43 O .amend I, cl. 1. 1. cl. I, .amend . 102, N ). Talk of the Nation: Should U.S. Constitution Be an International Model? OL , at least outside of emergency situations). emergency of outside least at ONST sec a warrant? without operating officers police design a cake for a same-sex marriage, conflicts state with public accommodation a law? police police investigation? beliefs trump the civil rights of same-sex couples seeking business? a small from cake a wedding to purchase right to privacy in his cell phone location data, allegedly tying him to a series of armed robberies, conflicts with a and Carpenter v. United States, 138 S. Ct. 2206, 2223 (2018) (holding that the Fourth Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm Rights Civil Colo. v. Ltd. Cakeshop, Masterpiece amend IV, cl. 1. 1. cl. IV, amend amend VIII, cl. 3. cl. VIII, amend 44 1. 2. - MULR V Id. Id. The Courage of the Roberts Court to Solve Constitutional Riddles Riddles Constitutional Solve to Court Roberts of the The Courage . .See, e.g. .See, .See .See .See A. s duty under the First Amendment not to base laws 43. U.S. C 44 45. 46 47 48 Let us begin with a few constitutional riddles unrelated to firearms. The M K IOCCHETTI IOCCHETTI C Y (Feb. (Feb. 13, 2012, 1:00 PM), international-model [https://perma.cc/SW5D-GFXQ] https://www.npr.org/2012/02/13/146816817/is-the-u-s-constitution-an- (quoting Christina Murry, a constitutional law expansive expansive are these rights and what happens governmental when interests? Such questions they expose interpretative gaps conflict illustrated with vital cases: controversial recent) (very three by proclamations proclamations mean in the specific context of individual lawsuits? How foster a fair, free, governments and transitioning robust to society democracy. and serve as models for foreign persons, persons, houses, papers, and effects, against unreasonable searches and 2018] 2018] C (holding (holding that the Colorado Civil Rights Commission State professor from the University of Cape Town, who, while debating the influence of the United States of States the United the influence of debating while Cape who, the Town, University from professor Constitutionothernationsin making process in the democraticConstitution U.S. the inform that principles world that isn viewpoint religious Amendmentprotects against the warrantless search of a person parties third by 40986 mqt_102-2 Sheet No. 12 Side A 01/29/2019 13:38:24 01/29/2019 A Side 12 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 12 Side B 01/29/2019 13:38:24 M K C Y or (2) a a (2) or ). 53 (Apr. (Apr. 2016), ition as its guide, so so guide, its as ition s world s Is it it Is 49 TLANTIC A HE [102:309 [102:309 s history of the common law . . . . In In . . law . . common the of history s ] precepts to today to precepts ] [m]y advice to an attorney litigating a case a case litigating attorney an to advice [m]y must focus on underlying principles when dentity ofthe speaker and the content of the This task requires a great deal of of deal great a requires task This 50 Citizens United, T ) ) 1/17/2019 8:29 PM History, Tradition, the Supreme Court, and the First the only way to significantly change that that change significantly to way only the 52 ELETE D OT N How How to Reverse 51 O MARQUETTE LAW REVIEW LAW MARQUETTE .2(D O note 32 (stating that judges L.J. 901, 901 (1993) (stating ). Of course, if the Supreme Court uses history and trad and history uses Court Supreme the if course, Of ). . 102, N supra supra OL , Erwin Chemerinsky, ASTINGS , David Cole, ). H unconstitutional for unconstitutional a state court to ignore or discount the most up-to-date studies on mental illness murderer? before a convicted of the execution ordering punishment hinges diagnosed upon using modern an scientific methods? intellectual disability Moore Moore Texas,v. 137 S. Ct. 1039, 1053 (2017) that (holding lower courts ignore cannot Citizens United v. FEC, 558 U.S. 310, 364 (2010) (holding, among other things, that the , 44 3. - MULR V See, e.g. .See .See .See .See .See, e.g. .See, 53. An way interesting to promote the change of a Supreme Court ruling is through political 52 49 50. Kaufman, 51 The infusion of broad constitutional rights into tough cases like these Significant Significant lifting in this area comes from the Justices themselves. The IOCCHETTI IOCCHETTI First Amendment does not permit Congress to make these categorical distinctions [on who may i corporate the on based campaigns] political to contribute speech political that to similar be to need would momentum This level. state the at momentum and legislation, action, gained by the same-sex marriage movement at the state level course. prior to the Supreme Court changing must lower courts when interpretingthe same constitutionalprovisions. mustcarefully d point to make rulings and set precedent. creates pressure points. There are no obvious answers, and the public raises the the raises public the and answers, obvious no are There points. pressure creates hand, other on the Judges, results. ideological particular for clamoring by heat constitutional constitutional amendment (virtually impossible given the current political meaning meaning is: (1) via a subsequent (possible the andwith right momentum Court composition, but rare) Supreme Court opinion saying as much before the current Supreme Court is to buy a copy of Blackstone of copy a buy to is Court Supreme current the before Supreme Court sits at the apex of the pyramid when it comes to interpreting the the interpreting to comes it when pyramid the of apex the at sits Court Supreme ambiguous Constitution. Like it or not, majority opinions become the law of the land. For Amendment protects spending by example, corporations to advocate for the election or when the Roberts defeat Court of a decides political candidate, that the First virtually every area of constitutional law, the Supreme Courtguidein decisionmaking. increasingly is relying on tradition as its 324 324 C https://www.theatlantic.com/magazine/archive/2016/04/how-to-reverse-citizens-united/471504/ [https://perma.cc/W9XE-URFA]. current current medical standards in whether determining a death row inmate is intellectually disabled and, Amendment). Eighth the under penalty death the for ineligible therefore, going about their delicate duty of applying the [Bill of Rights Amendment judicial energy and effort. judicial energy 40986 mqt_102-2 Sheet No. 12 Side B 01/29/2019 13:38:24 01/29/2019 B Side 12 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 13 Side A 01/29/2019 13:38:24 , , , , ) in EWS GOV . N EOPLE P ). ). ONGRESS but anything but anything Let’s Talk About PEECH PEECH 56 S 17 (2012) (stating that applies to the Montana Montana the to applies REE REE s 5-4 decision . . . to strike Citizens United, CBS , F 325 325 Should Die. Here’s why that won’t that why Here’s Die. Should ved on the Court until his death in Campaign Finance Reform Blocked s argumentsjudgmentsupporttheins of , Nathan Newman, Citizens United Supreme Court Legislation or agency action at the the at action agency or Legislation See, e.g. , or fail to meaningfully distinguish that case. (Sept. 5, 2017, 10:38 AM), AM), 10:38 2017, 5, (Sept. a signer of the of Declaration Independence 55 Citizens United in 1805 and ser and 1805 in and the ability to control the nomination nomination the control to ability the and Burgess Everett, Burgess Everett, 58 ) ) 1/17/2019 8:29 PM See NTEGRITY ). ). decision introduced by Senator Tom Udall of New Mexico). Udall Senator of Mexico). by Tom New introduced decision ELETE D Citizens United Supreme Court Doubles Down on Has a U.S. Supreme Court Justice Ever Been Impeached? ship, ship, Inc. v. 567 Bullock, U.S. 516, 516 OT .I N Democrats Say ,https://www.congress.gov/bill/115th-congress/senate-joint- O THE NEXT BIG GUN CASE UB P GOV .2(D . decision has done nothing to change the minds of the justices the of minds the change to nothing done has decision O Citizens United Citizens United The Democracy for All Amendment . 102, N A Joint Resolution Proposing an Amendment to the Constitution of the United , ONGRESS OL , Elizabeth Nix, , Am. Tradition P , , Brian Montopoli, FOR , Sarah Kleiner, , Kleiner, Sarah . See See and other controversial decisions. decisions. controversial other and TR (Dec. 2, 2016), https://www.history.com/news/has-a-u-s-supreme-court-justice-ever- 2016), 2, (Dec. Public outrage is irrelevant. Citizens United Restore Democracy Resolution, H.R. Res. 343, 115th Congress, C 54 - MULR V Aside from the power to impeach a Justice (something that has COM (Sept. 12, 2014, 12:06 PM), https://www.politico.com/story/2014/09/senate-block- PM), 12:06 2014, 12, (Sept. . 57 , C .See, e.g. .See, .See, e.g. .See, .See, e.g. .See, .See, e.g. .See, .See, e.g. .See, See 56 58 57 55 54 question presented in this case is whether the holding of the holding in this is case whether presented question M K ISTORY OLITICO IOCCHETTI IOCCHETTI C Y the the united/ [https://perma.cc/Y3VT-R6YS] (stating that the Happen down a Montana law that limits corporate spending on elections made clear that the outrage generated generated outrage the that clear made elections on spending corporate limits that law Montana a down 2010 the by 1804; 1804; Justice Chase was acquitted by the Senate 1811.). It is important to note that the impeachment of judges should not be undertaken for political of political not for should be judges undertaken 1811.). to the It impeachment that note is important state law. There can be no serious doubt that it does. Montana does. it that doubt serious no be can There law. state below in rejected either were already (internal citation omitted). citation (internal H https://www.publicintegrity.org/2017/08/31/21144/democrats-say-citizens-united-should-die-here-s- why-won-t-happen [https://perma.cc/8CVV-GB27] (discussing proposed federal legislation designed of impact the minimize to state and fed resolution/8/all-actions?overview=closed#tabs [https://perma.cc/VQH6-FYYE] (last [https://perma.cc/VQH6-FYYE] visited resolution/8/all-actions?overview=closed#tabs July 18, 2018). The most recent Subcommittee on the Constitution and Civil Justice on June re-introduced 7, 2017 where it hasapparently stalled as House version of the well. amendment was referred to the DAEZ] (last visited July 18, 2018). https://www.cbsnews.com/news/supreme-court-doubles-down-on-citizens- PM), 8:52 2012, 25, (June https://www.congress.gov/bill/115th-congress/house-resolution/343/text [https://perma.cc/6SFY- 2018] 2018] climate). C campaign-finance-amendment-110864 campaign-finance-amendment-110864 [https://perma.cc/X8D8-3RWT]. It was re-introduced a few more times in the Senate and was most recently sent to the Judiciary Committee on January 24, 2017, where it stalled. States Relating to Contributions and Expenditures Intended to Affect Elections, S.J. Res. 8, 115th happened only once, unsuccessfully) once, only happened been-impeached been-impeached [https://perma.cc/VZ2C-6YU7] (discussing impeachment of Associate Justice Samuel Chase the House of Representatives down. purposes purposes as was alleged in the Chase impeachment and advocated for by some when Citizens it comes United to amendment to repeal the the repeal to amendment This amendment received fifty-four votes in the to threshold Senate, invoke cloture on a filibuster. six votes short of the required sixty vote https://freespeechforpeople.org/the-amendment/democracy-for-all-amendment/ (last visited [https://perma.cc/6GTS-CDSJ] July 18, 2018) (reprinting a proposal constitutional Congress, C P 40986 mqt_102-2 Sheet No. 13 Side A 01/29/2019 13:38:24 01/29/2019 A Side 13 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 13 Side B 01/29/2019 13:38:24 59 60 id. M K ). ). See C Y mentioned above. above. mentioned (June 5, 2012), 2012), 5, (June These actions stand OST 61 P at2261 (Gorsuch, J., dissenting); [102:309 [102:309 three three cases id. right-wing Court may try to strike down n, 138 S. Ct. 1719, 1748 (2018) (Ginsburg, UFFINGTON , H ) ) 1/17/2019 8:29 PM dissents just in the the in just dissents (Sept. 29, 2015, 2:35 PM), PM), 2:35 2015, 29, (Sept. six ELETE EWS D N Landmark Decisions During John Roberts’ Decade as Chief OT at 2246 (Alito, J., dissenting); N O id. MARQUETTE LAW REVIEW LAW MARQUETTE s annual term and most often when the Justices release their most .2(D O AILY . 102, N OL , Scott Chiusano, N.Y. D - MULR V .See, e.g. .See, , 61. is generally June. in This decided was cases of these but one all that to note It is important 60. Proving this point, there were 59 The following chart details just a few of the major Roberts Court decisions decisions Court Roberts major the of few a just details chart following The And, the Justices tend to play their hand well. Over the past few years IOCCHETTI IOCCHETTI at 2235 (Thomas, J., dissenting); dissenting); J., (Thomas, 2235 at Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm J., dissenting); J., dissenting); (Kennedy, (2018) 2223 2206, S. Ct. 138 States, United v. Carpenter Moore v. Texas, 137 S. Ct. 1039, 1053 (2017) (Roberts, C.J., dissenting). dissenting). 1053 (2017) C.J., (Roberts, 1039, 137 Ct. Texas,S. v. Moore the last month of the Court noteworthy opinions. article-1.2378637 [https://perma.cc/KKS2-F5HP] (summarizing key cases). cases). key (summarizing [https://perma.cc/KKS2-F5HP] article-1.2378637 http://www.nydailynews.com/news/national/landmark-cases-john-roberts-decade-chief-justice- Their Their decisions interpreting the Bill of controversial, Rights, rarely pedestrian, in and almost particular, always are elicit stinging generally dissents. Impeaching Impeaching Supreme Court Justices But . . . the . .But . Court persists. There are circuit splits to remedy, unsettled issues that require an authoritative interpretation, precedent. of sight lose or disregard and lower court opinions that interpreting controversial constitutional guarantees over the past five These years. examples tell a story of the Justices doing three things: (1) difficult, accepting politically charged law even in the (2) unsettled clarifying riddles), (i.e., deciphering amendments cases involving face of public indignation ambiguous (i.e., acting courageously), and government of branches other (3) helping constitutional (i.e., field the narrowing in questions open of scopethe better solve policy dilemmas by clarifying the law). 326 326 and selection process (too removed in realm. this in players impactful less are far branches Legislative and Executive time to be an effective check), When the it comes to constitutional interpretation, the Judicial Branch holds the cards. strongest alone, the Supreme Court has addressed and applying broad constitutional principles answered to difficult facts in individual cases. tough questions by C difficult difficult cases are regularly denied. clarity, allows open questions to proliferate, and causes the riddles to become more and more perplexing at just the wrong time. starkly opposed to the way the Court deals with the Second Amendment, where where Amendment, Second the with deals Court the way the to opposed starkly https://www.huffingtonpost.com/nathan-newman/supreme-court-health-care-law_b_1405825.html on vote Court the Supreme what was the then pending (discussing [https://perma.cc/W7H2-T2HG] Affordable Health Care Act (ACA) and stating actual to lead could that backlash a will thatfear they but reform] care for health ACA to the the [alternatives reform care health as goal popular a such to avenue democratic every block they if impeachment Justice 40986 mqt_102-2 Sheet No. 13 Side B 01/29/2019 13:38:24 01/29/2019 B Side 13 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 14 Side A 01/29/2019 13:38:24 PM
ASES ASES
65 (June 8:29 C :
Missouri Missouri (June 27, 27, (June PSET OUGH OUGH LATE
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63 only only as a result of MENDMENTS , S 64 A In In fact, it is rarely ERE ERE the uninvited presence of presence the uninvited : Now, local
ECIDING ECIDING W D , the court held for the DDED 327 327 A
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: Does this include vouchers C
) (quoting Zelman v. Simmons-Harris, EOPLE ONSTITUTIONAL ONSTITUTIONAL : Denials of generally available 62 C PEN O . . . P house for over nine hours without permission to ND OLDING LARITY LARITY Goodbye, Establishment Clause TILL government grants solely because of an governments governments understand when they may houses to directly money taxpayer provide of worship when it comes to benefits. public available generally S Trinity Trinity Lutheran 26, 2017) to attend religious schools? religious to attend However, However, the Third never Amendment been has the Supreme Court case. focus of a decided Exercise Clause. Clause. Exercise C very very first time mandatespublic funding ofachurch. that The the Constitution worship to demand taxpayer money to the focus of a petition for certiorari. for a petition offocus the A No examples No examples Trinity Trinity Lutheran Church v. Comer ruling ruling will encourage more houses of H NVOLVING NVOLVING I
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2
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(D. Nev. Feb. 2, 2015) (arguing, unsuccessfully, that unsuccessfully, Feb. (D. 2, Nev. 2015) (arguing, 102,
. SSUE I OL 13 V Mitchell v. City of Henderson, No 2:13-cv-01154-APG-CWH, 2015 U.S. Dist.
at 2029 n.2 (leaving open the vouchers question by stating that because because that stating by question vouchers the open (leaving n.2 2029 at - - Establishment Establishment Clause
MULR
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.See id. .See .But see .But 64. Perry Grossman & Mark Joseph Stern, 62.2024 2012, Ct. S. 137 63 65 First M K Third MENDMENT Second A IOCCHETTI IOCCHETTI C Y the Henderson, Nevada SWAT team, using plaintiffs using team, SWAT Nevada Henderson, the
2018] 2018] C 2017), http://www.slate.com/articles/news_and_politics/jurisprudence/2017/06/trinity_lutheran_threa 2017), [https://perma.cc/3U3C-G2ZE]. tens_to_obliterate_the_divide_between_church_and_state.html LEXIS 12645, *2 of decisions about indirect aid programs in which aid reaches religiousinstitutions the genuine and independent choices of private individuals (2002)). 649 639, U.S. 536 decides which Scrap Tire Program applicants receive state funding, this case does not implicate aline 40986 mqt_102-2 Sheet No. 14 Side A 01/29/2019 13:38:24 01/29/2019 A Side 14 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 14 Side B 01/29/2019 13:38:24
:
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U (June 22, OUGH OUGH T MENDMENTS A ERE ERE W
: Now, local 66 ECIDING ECIDING D DDED [102:309 [102:309 (June (June 29, 2018), https://www.city- A
OURT J. : Is a warrant needed when the the when needed warrant a Is : C EOPLE ONSTITUTIONAL ONSTITUTIONAL : Warrantless searches of a ITY but public-policy concerns are C PEN unlawful peacetime quartering of soldiers
, C O 67 . . . P ND OLDING LARITY LARITY TILL as evidence in a criminal case is sound the Court takes such concerns into type of investigation. Warrants, however, however, Warrants, investigation. of type trial. at admissible S governments governments understand that they must this on embarking before warrant a obtain (obtained from wireless carriers) violate Amendment. the Fourth C government government requests real-time cell site tower? a cell from all data including agents to get a warrant before obtaining use for records location cell-site using and policy not the proper domain of judges. When 2018) are relatively easy to obtain and, with a warrant, this revealing data is likely H This is much different from the thousands thousands the from different much is This the around revolving petitions certiorari of Second Amendment. Carpenter v. United States A NVOLVING NVOLVING I
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at2220. Warrantless ofSearches Cell Phone Location Records
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- .See infra infra .See id. .See 66 67.(2018). 2223 2206, Ct. S. 138 68 69. Rafael Mangual, MENDMENT Fourth A IOCCHETTI IOCCHETTI in violation of the Third Amendment). Third the of violation in the constituted next door, situation an emergency surveil 328 328 C journal.org/html/supreme-court-carpenter-decision-15996.html [https://perma.cc/Z2CV-TCNG]. [https://perma.cc/Z2CV-TCNG]. journal.org/html/supreme-court-carpenter-decision-15996.html 40986 mqt_102-2 Sheet No. 14 Side B 01/29/2019 13:38:24 01/29/2019 B Side 14 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 15 Side A 01/29/2019 13:38:24 PM
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: 71 70 OUGH OUGH PSET T U MENDMENTS (June 19, 2013, 6:05 6:05 2013, 19, (June A ERE ERE LATE LATE ECIDING ECIDING (June 23, 2017) 23, (June W , S , D : Now, the police know (June 17, 2013) 17, (June
329 329 72 OURT : What would it take for police police for take it would What : C DDED EOPLE ONSTITUTIONAL ONSTITUTIONAL A : A defendant who pleads guilty : Silence may be used against a C PEN O . . . P ND OLDING OLDING LARITY LARITY TILL pressure pressure questioning that can elicit false while while facing very long odds of acquittal may still be performance able by to attorneys show deficient who give more more about the line between where a opportunity opportunity to assert the against privilege officers officers to deprive a suspect of the silent is wrong and because it also encourages the kind dangerous of high- incorrect incorrect immigration the take to want may defendants example, advice. 1% chance of prevailing at trial over the For in custody and (2) failed to silent. remain to right invoke Fifth Amendment the C inadmissible at trial. trial. at inadmissible S self-incrimination prior to arrest? prior self-incrimination 100% chance of deportation if improperly improperly if deportation of chance 100% guilty. to plead advised suspect suspect at trial the without violating Fifth Amendment as long as the suspect: (1) was talking to police before being placed H Lee v. United States Lee v. United Salinas v. Texas v. Salinas H A NVOLVING NVOLVING I
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Right of Right Suspects of Counsel Counsel of Right toRight Assistance Pleain Bargaining to Remain to Remain Silent to Prior Arrest
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- .See id. .See 73.1968 1958, Ct. S. 137 70.(2013). 191 178, U.S. 570 71 72. Garrett, L. Brandon Fifth M K Sixth MENDMENT A IOCCHETTI IOCCHETTI C Y
2018] 2018] C PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2013/06/salinas_v_texas_right_ PM), [https://perma.cc/4MLH-G4D8]. to_remain_silent_supreme_court_right_to_remain_silent.html 40986 mqt_102-2 Sheet No. 15 Side A 01/29/2019 13:38:24 01/29/2019 A Side 15 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 15 Side B 01/29/2019 13:38:24
s ’ M K PM
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: DDED C Energy EOPLE
A ONSTITUTIONAL ONSTITUTIONAL : A process that allows the C 74 PEN O . . . P States
OLDING ND LARITY LARITY TILL TILL revocable revocable by the government as opposed deportation same the suffered have would consequences regardless of whether he bargains bargains made outside the immigration probability probability of any other verdict. A thus is He trial. to went or plea a accepted plainly better off for having accepted his plea: had he gone to trial, would he have not faced only the same deportation consequences, he also likely would have to the facts of this case would defendant guilty. find There is the no reasonable Patent Patent and Trademark Office to review jury a without patent issued an cancel and trial does Amendment. not Patents are a public right offend the to Seventh private rights, and Congress properly assigned these cases to a Non-Article III tribunal. Energy Group understand understand the nuances of when to stop protesting what seem to be irrational plea clients. their by decisions S context? A Oil C H face face of overwhelming evidence of guilt defense, fide a bona of absence and in the law the applying jury or court reasonable a NVOLVING NVOLVING I
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at 1974 (Thomas, J., dissenting). dissenting). J., (Thomas, 1974 at Run by the by Run PTO Right to a inTrial Jury a Patent Revocation Proceeding
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- .See id. .See .Id. 76.(2018). 1379 1365, Ct. S. 138 74 75 MENDMENT Seventh A IOCCHETTI IOCCHETTI
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ndustry- 79 Oil States States Oil : OUGH OUGH T MENDMENTS PSET out considering considering out A U 2018/04/24/i ECIDING ECIDING ERE
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331 331 OURT 77 : What about patents granted DDED C EOPLE A ONSTITUTIONAL ONSTITUTIONAL
: Defendants could not provide a a provide not could Defendants : C PEN O . . . P OLDING ND LARITY LARITY TILL partes partes review has been blessed Court and by parties better the understand how to: (1) challenge patents outside of court entitled to a jury trial for these not terribly surprised. opinion, and the The many others majority cheering who are the constitutionality back on fall the horror review, partes trite of inter before before the law that created inter review was partes enacted? Are patent holders proceedings? and (2) the Executive Branch power patent. invalid an revoke to S of execution that provides less pain and also did not meet their burden of proving that the particular drug in question failed an execution. during pain to eliminate am am disappointed with the Supreme the the real effects on innovation. To the have not should that patents mean I phrase been granted in the first place, it seems that the bureaucracy to attack these patents is the creation of a monstrous H Glossip v. Gross Glossip C A NVOLVING NVOLVING I
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During an Execution The Effectiv of Drugs Administered
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C A EOPLE ONSTITUTIONAL ONSTITUTIONAL
C PEN O s motion to dismiss, that the United States . . . P ND LARITY LARITY TILL know know that this drug may be used in that that Sonia Sotomayor may move in that firing squad? firing Ruth Bader Ginsburg possible least at seems It unconstitutional. direction as well. opinions by overwhelmed was spot bright Unfortunately, that from Clarence Thomas, Antonin Scalia and Samuel A. Jr. Alito that they indicate are as adamant as ever about keeping regrettable Supreme Court decision Glossip v. in Gross current justices No examples However, the Ninth Amendment is rarely the focus of a Supreme Court decision. In fact, it certiorari. petitionfor a of focus the rarely is This is much different from the thousands of certiorari petitions revolving around the executions. executions. S capital punishment around . . . . . around punishment capital chooses chooses an execution that would be less painful alternative but more visibly toshocking the public like a method of C A idea that the death penalty is NVOLVING NVOLVING I
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There’s Nothing ‘Enlightened’ about Executing the Innocent 102,
. SSUE I OL Juliana v. United States, 217 F. Supp. 3d 1224, 1233, 1248 1233, 1224, 3d Supp. F. 217 States, United v. Juliana V
at 2796 (Sotomayor, J., dissenting). J., dissenting). (Sotomayor, 2796 at -
MULR
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, 84 the PM
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s 333 333 ’ OURT at 2318 (surgery center). center). (surgery 2318 at the Court held that state laws
C id. ONSTITUTIONAL ONSTITUTIONAL 88 C the Court upheld a public Woman
87 mandating mandating doctors who provide abortions have hospital admitting privileges and that abortion clinics meet the standards for a Court Court held that the Fourteenth Amendment marriage. same-sex to right a guarantees Fisher v. University of 2016) Texas over the past five years such as: as: such years five past the over v. Obergefell Hodges debate. debate. The Roberts Court has taken its Second Amendment. This is much different from the thousands of certiorari petitions revolving Second Amendment. around the part of a holistic admissions scheme. scheme. admissions part of a holistic Whole 27, 2016) No examples However, the Tenth Amendment is rarely the focus of a Supreme Court decision. In fact, it certiorari. petitionfor a of focus the rarely is surgical surgical center create an undue burden and Amendment. the Fourteenth violate thus share of very controversial cases in this area area this in cases controversial very of share Though Though it resides outside of Rights, the the Fourteenth Amendment is Bill also of very powerful, ambiguous, and up for NVOLVING NVOLVING I
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Glenn Fleishman, V
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2018] 2018] C F 40986 mqt_102-2 Sheet No. 17 Side A 01/29/2019 13:38:24 01/29/2019 A Side 17 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 17 Side B 01/29/2019 13:38:24 M K
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T OL .C UP S HEAR
- MULR V .See The 90 89. Marbury v. Madison, 5 U.S. 137, 177 89 B. IOCCHETTI IOCCHETTI particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, other, each with province and conflict duty laws of two If the rule. judicial department that to interpret say and what expound the law necessity of is. must cases, Those particular who apply both the if constitution; rule the to to opposition in be law a if So each. of operation the on decide must courts the the law and the constitution apply to a disregarding particular case, so constitution, that the the to court must conformably either decide or that case constitution; the disregarding law, the to conformably case. the governs rules conflicting these of which determine must court the law; the duty judicial of essence Constitution Constitution and guide, appropriate. where governments correct, empower, and Court need limit not become federal an unelected and legislature politically doing the state timid, job of or inactive, deadlocked Neither should members the Justices of correct poorly written Congress/state Instead, or the Court ill-conceived legislatures. should continue statutes. to work faithfully within its self-imposed for certiorari. granting parameters of worms. A different, and perhaps more positives of persuasive, these decisions (the updated argument guidance and narrowing of is unsettled that the law that allows governments to function outweigh their negatives within constitutional boundaries) a matter of public policy. These also They opinions public. the clarify and businesses, officials, important government judges, legal lawmakers, issues for the rules. know least at field people where playing level a more create to exists Court the day, the of end the At functions. primary 334 334 sixtackled of inthe ten amendments the Bill of Rights This brief sketch helps highlight that the Roberts Court has very recently Perhaps unsurprisingly, the Third, Ninth, and Tenth Amendments are rarely invoked in Questions Presented to the Court. This makes the neglect of Second the Amendment stand out like a sore thumb because it consistently plays the role of the protagonist in lawsuits. politically charged Additionally, nature the of each controversial of and these tough cases is quite conspicuous. Accordingly, much ink has been spilled in response high including praise and deep condemnation. Some even argue that these decisions open up new cans C this this Article argues that the Supreme coexist: factors four following the law unsettled when clarifying Court should more strongly consider 40986 mqt_102-2 Sheet No. 17 Side B 01/29/2019 13:38:24 01/29/2019 B Side 17 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 18 Side A 01/29/2019 13:38:24 91 ,which ,which contain scretion. scretion. : In the firearms firearms the In EFEREE R : Where other 335 335 UTHORITATIVE A NLY NLY includes questions of federal law that that law federal of questions includes : Where confusion over how to /O ) ) 1/17/2019 8:29 PM EST ELETE : Where an postured appropriately case B D . OT N exclusively ONFUSION O THE NEXT BIG GUN CASE C Heller Rules of the Supreme Court of the United States United the of Court Supreme the of Rules .2(D O OURT IS THE THE IS OURT C . 102, N Considerations Governing Review on Writ of Certiorari of Writ on Review Governing Considerations OL AMSTRUNG AMSTRUNG GOVERNMENT ACTORS PPROPRIATENESS HE HE CHOES OF H E A T The HEAR framework fits solidly within and even helps explain this this explain helps even and within solidly fits framework HEAR The branches branches of authority; their government on boundaries constitutional unclear are of because hindered in their (E) job duties note: this case need not be part of a major circuit split; and split; circuit a major of part be not need case this note: (R) (one (one with a broadly applicable table; to the errors) comes procedural and no serious standing, fact pattern, clear plaintiff Where the contours of a Constitutional provision are in the mix mix the in are provision Constitutional a of contours the Where position) only the (perhaps position best the in is Court the and guidance. authoritative to add (H) interpret interpret precedent reverberates throughout the appeals courts to the point where rulings/dicta; Court Supreme opaque around circuit-court-created legal tests (A) tiptoe - MULR V 92 .Id. .Id. 91 92 In In practice, the Roberts Court has been guided by these types of factors in Since Since the Supreme Court has the power to decide which cases to grant, [ve] [ve] M K IOCCHETTI IOCCHETTI C Y could could easily encompass these factors without revision. Rule 10 begins: a section styled, styled, section a the past. The best example comes from the same-sex marriage arena and the The rule then enumerates three situations where the Court is most likely to hear hear to likely most is Court the where situations three enumerates then rule The a and court federal a between or courts federal between splits circuit (1) case: a state supreme court; (2) differing opinions on the same matter between state but been, not has that law federal of question important an decided has appeals should be, settled federal Court, by [the or has andecided important Supreme] question in a way that conflicts with relevant decisions of [the Supreme] 2018] 2018] C third third category because it adopting adopting this HEAR framework, formally or informally, the fact, In discretion. is fully within its Supreme Court such as such Court Supreme context, context, the also framework often includes where situations a federal question 40986 mqt_102-2 Sheet No. 18 Side A 01/29/2019 13:38:24 01/29/2019 A Side 18 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 18 Side B 01/29/2019 13:38:24
94 M K PM
At C Y 8:29 95
ARRIAGE State officials officials State 97 M Justice Kennedy , state officials were were officials state , 96 EX , the Justices chose to chose , Justices to the
-S [102:309 [102:309 AME S ual sodomy of all things. all of sodomy ual Obergefell Obergefell - - -sex marriages, bless same-sex Priorto are are : Are government officials hindered in ) 1/17/2019 Yes! Maps: Maps: What the Supreme Court’s Ruling on Same-Sex PPLICATION TO TO PPLICATION : A ELETE D Interestingly, in Interestingly,
OT N UESTION 93 , NPR (June 25, 2015, 5:03 AM), NSWER O
MARQUETTE LAW REVIEW LAW MARQUETTE requires states to license a marriage between two constitutional boundaries on their authority? authority? their on boundaries constitutional people of the same sex up cleared this and confusion freed to tailor officials lawstheir to with comply this Q executing executing their job duties because of unclear marriages, marriages, or recognize only same-sex marriages were hamstrung and it was time for the Justices to act. act. to Justices the for time was it and hamstrung were the time, an expert in the field stated that, though it was possible to break the upcoming Supreme Court decision on same performed performed in states where the practice was legal. neatly neatly color-coded maps [of the United States], there A There There was no clear precedent on this issue and state officials were forced to seek guidance from Supreme homosex on cases Court confused as to whether the Constitution allowed them them allowed Constitution the to whether as confused to prohibit same means outcomes could vary widely by state if the court court the if state by widely vary could outcomes means decides bans is a complicated web of state laws at work, and it legislation, referenda, attended these public and acts, the States are now divided the on the discussions issue of same that (D
2
. note 94.
O case. N ET
M 102, supra supra
. , 135 S. Ct. at 2604. 2604. at Ct. S. 135 , , 135 S. Ct. at 2597. 2597. at Ct. S. 135 , OL , Danielle Kurtzleben,
V
MULR
- Kurtzleben, Obergefell Obergefell .See, e.g. .See, . ACTOR FFICIALS F 93.(2015). 2584 Ct. S. 135 94 95. 96 97.
AMSTRUNG AMSTRUNG O H IOCCHETTI IOCCHETTI Marriage Marriage https://www.npr.org/sections/itsallpolitics/2015/06/25/417112332/heres-how-the-supreme-court- [https://perma.cc/PTS2-D34N]. Could could-rule-today-on-same-sex-marriage Mean grant certiorari only after each of the four HEAR factors materialized: materialized: factors HEAR four the of after each only certiorari grant
336 336 v. Obergefell Hodges C 40986 mqt_102-2 Sheet No. 18 Side B 01/29/2019 13:38:24 01/29/2019 B Side 18 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 19 Side A 01/29/2019 13:38:24 PM
8:29
United (Apr. 26, 26, (Apr. BLOG ARRIAGE M , lower courts used -court rulings that SCOTUS
, EX n, 138 Ct. S. 1719(2018). -S 337 337 AME S Obergefell
99 decision, some . . . struck down down struck . . . some decision, Before Before An Eighth Circuit court wrote about the the about wrote court Circuit Eighth An The battleground was narrowed and has has and narrowed was battleground The : Does confusion by judges reverberate Yes! ) 1/17/2019 100 98 : PPLICATION TO TO PPLICATION A ELETE D OT N UESTION NSWER O THE NEXT BIG GUN CASE
where legal tests are created that tiptoe around opaque opaque around tiptoe that created are tests legal where caselaw? Court in Supreme or dicta rulings A be applied in legislative determining and constitutional the enactments the under validity Fourteenth of Amendment is state a Though subject Justices. the among disagreement of and debate continuing for a number of reasons that [the state constitutional amendment] should receive rational-basis review various various tests t regulation of same-sex marriage was constitutional. of the the in wake marriage same-sex favored States v. Windsor state bans under rational basis, some under Q mandate. since moved accommodation to laws protecting same-sex the couples conflict between religious business owners, for example. This is also public an issue that would pass the HEAR framework and, to scrutiny judicial of level the attest, decisions Court under the Equal Protection Clause, rather than a throughout throughout the circuit courts of appeals to the point the most relevant precedents are murky, we conclude we conclude are murky, precedents relevant the most heightened heightened scrutiny, and some under strict versus versus the First Amendment rights of sincerely process in that realm. in that process appropriately, appropriately, the Court has begun the clarification (D
2
. Same-Sex Same-Sex Marriage: The Decisive Questions
O N ET
05. M 102,
. OL
enniston, V
at2604
Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm MULR
- .See id. id. .See .See ACTOR CHOES OF F ONFUSION 100. Lyle D 98 99 M K E C IOCCHETTI IOCCHETTI C Y
2018] 2018] C 2015, 2015, 3:22 PM), [https://perma.cc/AY53-HRVQ]. http://www.scotusblog.com/2015/04/same-sex-marriage-the-decisive-questions/ 40986 mqt_102-2 Sheet No. 19 Side A 01/29/2019 13:38:24 01/29/2019 A Side 19 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 19 Side B 01/29/2019 13:38:24 M K PM
, 135 135 , C Y 8:29
Obergefell ). The court court The
101 ARRIAGE M case was an ideal ideal an was case This confusion EX overruledby 102 -S [102:309 [102:309 AME a man and a woman a and man a S ual ual orientation is a suspect Obergefell The marriages to to marriages Yes! decision (which ironically cleared up the : Has an appropriately postured case (one : Are the contours of a Constitutional ) 1/17/2019 : PPLICATION TO TO PPLICATION There were no major procedural errors or 95. A ELETE 103 D recognized OT N NSWER UESTION UESTION O MARQUETTE LAW REVIEW LAW MARQUETTE precedent and, thus, satisfied this factor. factor. this satisfied thus, and, precedent marriage marriage negatively impacted the core of their issue without clearly endorsing any of these tests). tests). of these any endorsing clearly without issue It is important to note that the as ambivalent to which HEAR test (if any) the Court selects framework is or which way a case comes out. focus Instead, is on the the added clarity sole and narrowing of open reverberated reverberated throughout the lower courts until Obergefell the were forced to clean up or dance around. The case was appropriately postured to create an enduring went on to claim that, since the Supreme Court has rational basis test applies. issue. issue. The plaintiffs presented different compelling and examples very of how a ban on same-sex lives. Q Q guarantee guarantee in the mix, and is the position Court in the best (perhaps guidance? authoritative the only position) to add petition for certiorari? certiorari? for petition A with a broadly applicable fact pattern, clear standing, standing, clear pattern, fact applicable broadly a with vehicle within which the Court could decide this issues that often occur with a decision from the Court. Court. the from decision a with occur often that issues runner the advancing of strategy the like this of Think team the gets base additional each game; baseball a in home. to closer standing issues in the lower courts which the Justices Justices the courts which lower the in issues standing and no serious procedural errors) made its way to a and (D
2
.
O N valid ET
M 102, , 135 S. Ct. at 2594 at Ct. S. 135 ,
.
OL V
MULR Obergefell
- .Id. ACTOR EFEREE F 102 103. 101. Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (2006), (2006), 866 859, 101. F.3d 455 Bruning, v. Prot. Equal for Citizens R PPROPRIATENESS A IOCCHETTI IOCCHETTI
338 338 C S. Ct. at 2584 (2015) Constitution (upholding, that limited under the rational basis test, an amendment to the Nebraska 40986 mqt_102-2 Sheet No. 19 Side B 01/29/2019 13:38:24 01/29/2019 B Side 19 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 20 Side A 01/29/2019 13:38:24 PM
8:29 By
On a a On 106 made a 105 ARRIAGE M Obergefell EX -S Win or lose, matters 339 339 AME 107 President Obama was was Obama President S 104 Resolution of whether the Equal Equal the whether of Resolution Yes! 12 (Roberts, C.J., dissenting). dissenting). C.J., (Roberts, 12 ) 1/17/2019 : PPLICATION TO TO PPLICATION the the only entity able to offer definitive A ELETE D OT N NSWER O THE NEXT BIG GUN CASE marriages marriages required an opinion from the Supreme powerless powerless to issue binding executive orders infringed . . . at . . . infringed present. unelected unelected judges could stay out of the mix, and the voters could voice Justice elections. the thatChief was sense, In almost their opinions of favor in momentum national The correct. in certainly upcoming same-sex marriage was rapidly gaining speed. A constitutionally capable of solving the problem. the problem. solving of capable constitutionally This is much different from the legalization of where plaintiffs allege the final arbiter. People should not have depravation to wait for the of a circumstances. They deserve a court proceeding to make that determination. Therefore, at least in the same-sex marriage arena and considering the related related note, the dissenters in strong argument that the states (through the people) were eventually going themselves to in the decide same way this as the issue Court. for overturning overturning state same-sex marriage bans. Protection Clause mandates states to license same-sex same-sex license to states mandates Clause Protection Court guidance on a constitutional guarantee. Congress same-sex marriages. could not legislatively require the states to bless However, the plaintiffs in these cases argued that their their that argued cases these in plaintiffs the However, Equal Protection guarantees were being allowing allowing the political process to work itself out, fundamental right require the Supreme Court to be the the be to Court Supreme the require right fundamental political process to find consensus under these circumstances in which America, this the issue Justices evolved were in the only referees (D
2
. O N ET , 135 S. Ct. at 2611 at Ct. S. 135 ,
M 102,
. United States v. Windsor, 570 U.S. 744, 762 (2013). 744, 570 U.S. Windsor, States v. United
, OL at 2593 (majority opinion). opinion). (majority 2593 at V
New York v. United States, 505 U.S. 144 (1992). (1992). 144 U.S. 505 States, United v. York New MULR
- .See, e.g. .See .See, .See Obergefell id. .See .See ACTOR F 104 105 106 107 M K IOCCHETTI IOCCHETTI C Y
2018] 2018] C 40986 mqt_102-2 Sheet No. 20 Side A 01/29/2019 13:38:24 01/29/2019 A Side 20 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 20 Side B 01/29/2019 13:38:24 , , M K PM
C Y (Apr. ISHER 8:29
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OST P OVERNING
. ASH , G , W , ARRIAGE Nebraska v. Colorado,Nebraska v. M Congress (or the the (or Congress See EX 108 -S the only actor able to to able actor only the [102:309 [102:309 AME not S
111 s original jurisdiction (i.e., a lawsuit between between lawsuit a (i.e., jurisdiction original s ). ). The Department of Justice could limit limit could Justice of Department The Therefore, a legal case challenging state state challenging case legal a Therefore, something of particular interest to the growing list to the interest growing of of particular something 109 ) 1/17/2019 110 PPLICATION TO TO PPLICATION A ELETE Obama Administration won’t Fight State Marijuana Laws D Is it Time to Revise our Federal Drug Laws? Drug Federal our Revise to Time it Is OT N O s permissive marijuana laws were negatively impacting neighboring MARQUETTE LAW REVIEW LAW MARQUETTE use of the drug or, on the other hand, strengthen the law of use to the push recreational tostates eliminate revise the CSA regulations) to legalize recreational marijuana laws would not pass the fourth factor of the the of factor fourth the pass not would laws marijuana framework. HEAR idea bandied about recently by Sessions). Attorney General marijuana marijuana for recreational use, for example. There, the Supreme Court is authoritatively address the clear Controlled Substances Act violation (CSA) by the nine of states the that have pursued legalization. marijuana. Drug Enforcement Agency) Drug could amend Agency) the Enforcement law (or the enforcement conversely, enforce violations more of strenuously (an marijuana violations or,
(D
2
. State State Marijuana Laws in 2018 Map O seemed seemed to suggest that his Justice Department might soon take a tougher N ET
, M 36 (2016) (Thomas, J., dissenting from the denial of the motion for leave to file file to leave for motion the of denial the from dissenting J., (Thomas, (2016) 36 102,
Tim Tim Dickinson, . , Christine Emba, Emba, Christine , OL (Aug. 30, 2013, 3:40 PM), https://www.rollingstone.com/politics/politics- PM), 3:40 2013, 30, (Aug. V
AG’s Conflicting Marijuana Policy Comments Leave Some Dazed and ConfusedandDazed SomeConflicting CommentsAG’sMarijuanaLeavePolicy
TONE MULR S
- .See, e.g. .See, .See, e.g. .See, .Compare .Compare with LLP (Dec. 4, 2017), https://www.fisherphillips.com/resources-alerts-ags-conflicting- 2017), 4, (Dec. LLP ACTOR F 108 111. reasons. for other fact, In hearing case is the worth whether about little says analysis This 109 110 OLLING HILIPS IOCCHETTI IOCCHETTI a complaint) (arguing that the Court should revisit its decisions to apply discretion in avoiding original original avoiding in discretion apply to decisions its revisit should Court the that (arguing complaint) a jurisdiction cases like this and discussing the facts of this case where Nebraska and Oklahoma sued Colorado alleging that Colorado states in terms of drug trafficking and government resources spent combating the influx of drugs). of influx the combating spent resources government and trafficking drug of terms in states enforcement stance on recreational marijuana marijuana recreational legalized have that states news/obama-administration-wont-fight-state-marijuana-laws-180094/ FCHK], [https://perma.cc/KN29-
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340 340 C the Court could certainly still take a case like this under its discretionary authority (especially if it met met it if (especially authority discretionary its under this like case a take still certainly could Court the Court the under fell case the if or 10) Rule of criteria the states). Interestingly, an original jurisdiction case on this issue did come to the Court; the Justices Complaint.of Bill a fileto leaverequest OklahomaforNebraskaand denied 1035 1034, Ct. S. 136 marijuana-policy-comments-leave-some General [https://perma.cc/L3VF-KE8D]Jeffrey Sessions (stating that Attorney http://www.governing.com/gov-data/state-marijuana-laws-map-medical-recreational.html [https://perma.cc/JNR6-DPHJ]. 25, 25, 2016), https://www.washingtonpost.com/news/in-theory/wp/2016/04/25/is-it-time-to-revise-our- [https://perma.cc/7ZA8-J8K7]. federal-drug-laws/?utm_term=.154f1796e03c R 40986 mqt_102-2 Sheet No. 20 Side B 01/29/2019 13:38:24 01/29/2019 B Side 20 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 21 Side A 01/29/2019 13:38:24 l Nat Fisher v. See See See See FisherUniv. v. of Tex. See See . 116 341 341 FisherII (Mar. 3, 2018), where players randomly guess guess randomly players where EWS N case or Fisher Supreme Supreme Court Needs to Gun Clarify Rights Under OX ATTLESHIP ) ) 1/17/2019 8:29 PM Amendment Amendment , the Justices scolded the seemingly confused Fifth Circuit Fifth Circuit confused the seemingly , scolded the Justices and incorporating that right to bind state and and state bind to right that incorporating and ELETE D , F 114 and healthcare (Commerce Clause and Tax 15 (2013). The application of the Equal Protection Clause to OT N 112 educational space is a matter only the Court can definitivelycanCourtresolve.the matter only a educational spaceis O 14 (2016) (describing steps educational institutions should follow to to follow should institutions educational steps (describing (2016) 14 THE NEXT BIG GUN CASE .2(D O the Court has yet to provide much definitive guidance on on guidance definitive much provide to yet has Court the 115 . 102, N , Adam Carrington, Opinion, OL Fisher v. University of Texas arenas as well. Major cases covering these topics were accepted only Where Courage Fails the Roberts Court: The Neglected Second Second The Neglected Court: Roberts the Courage Fails Where - MULR V 113 in the context of firearms regulation. regulation. firearms of context the in .See, e.g. .See, C. 113. law was that the constitutional decided Court case, the Act Care Affordable the famous In 114. (2008). 635 570, U.S. 554 Heller, v. Columbia of District 115. (2010). 791 742, U.S. 561 Chicago, of City v. McDonald 116 112. In Interestingly, Interestingly, the Roberts Court has seemed to apply a version of this n of Indep. Bus. v. Sebelius, 567 U.S. 519, 588 (2012). Again, this is a decision required the M K IOCCHETTI IOCCHETTI C Y framework framework to decide cases (Fourteenth and Amendment) create clarity in the affirmative action local governments, local interpretive exercise is difficult, controversial, intimidating, or unpopular. Yet, Yet, unpopular. or intimidating, controversial, difficult, is exercise interpretive to keep right and bear an arms of individual Outside articulating Amendment. in the home for self-defense after after each of the were four factors satisfied. But, this has not been true for the Second Amendment. The next Section illustrates how the Court has ignored law is 2018] 2018] C with pinpoint coordinates. with pinpoint coordinates. Lacking in much the of form or guidance (a clarity o the blocks screen mostshots areoff-target. wearyA nation tryingbalanceto constitutionala right to keep and bear arms with a rash of gut-wrenching firearms violence should affairs. of state an arcane such condone to forced not be where opponents are hiding their fleet and then attempt to shoot each ship down down ship each shoot to attempt then and fleet their hiding are opponents where comply with the required strict scrutiny applied to affirmative action cases). action affirmative to applied scrutiny strict required the with comply under the Tax and Spend power of Congress as opposed to Fed its Commerce Clause power. Supreme Court to provide clarity in aconfusing area of the law. the Second Amendment Power) for applying for an applying standard to overly strict deferential scrutiny an action case. affirmative 2210 2198, Ct. S. 136 at Austin, when firearms regulations cross a constitutional line. So, lawmakers and judges judges and lawmakers So, line. constitutional a cross regulations firearms when situation This points. data sufficient without game guessing a play to forced are is reminiscent of the board game B Univ. of Tex., 570 U.S. 297,the in programs 314 action affirmative Itdid so veryclearly in the second iteration of the 40986 mqt_102-2 Sheet No. 21 Side A 01/29/2019 13:38:24 01/29/2019 A Side 21 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 21 Side B 01/29/2019 13:38:24 M K ] put ] put C Y Heller s highest court (July 4, 2008, 2008, 4, (July Regardless, OST 118 P nation [102:309 [102:309 ). UFFINGTON , H case from influential people including including people influential from case Heller radical Supreme Court justices [in (an oxymoron at best). This is especially especially is This best). at oxymoron (an ) ) 1/17/2019 8:29 PM ELETE D OT N O This opinion thrilled many on the gun-rights front MARQUETTE LAW REVIEW LAW MARQUETTE 117 .2(D O Supreme Supreme Court Gun Ruling Reactions . 102, N , OL , 554 U.S. at 592. 592. at U.S. , 554 Heller to eventually interpret the individual right to keep and bear arms more more arms bear and keep to right individual the interpret eventually to Heller - MULR V .See, e.g. .See, happened and remains the law of the land. The decision must now be be now must decision The land. the of law the remains and happened ). ). 118 117. This This is the proper course regardless of any objectionable political and Heller IOCCHETTI IOCCHETTI rigid ideology ahead of the safety of communities in New Jersey and across the country. This decision decision This country. the across and Jersey New in communities of safety the of ahead ideology rigid illustrates why I have strongly opposed extremist judicial nominees and will continue to do so in the future. Court authority, thereCourt is authority, no referee. The next specifically more Part illustrates how the HEAR factors call for an expeditious certiorari grant in the in one areas or two more out points IV Part Then, cases. Amendment Second significant Amendment Amendment guarantee, it is well past time for the Court to fulfill its promises in case. public policy outcomes that may stem from this new precedent. Contributing clarity, honoring judicial duty to interpret a confusing the on especially politics, trump should area guidance regulatory definitive creating of the law, and Supreme Court. This is morass legal especially current The stake. at are appropriate literally lives where Amendment in Second the somber realm entrench parties of as tensions increases the and court in legislation needed down bogs of Supreme absence the divide. In culture gun ideological the of sides on their Heller carefully parsed before enacting Because local, the state, opinion is or purposefully evasive federal on the specifics gun of the regulations. Second reason reason exists for the Second Amendment to dwell in the Supreme Court as an guarantee constitutional insignificant the after true to keep and bear arms. ownership and what the amendment allows for gun regulations.conversation. present .. the to . contribution In needed own soits make can doing, the Supreme Court http://www.foxnews.com/opinion/2018/03/03/supreme-court-needs-to-clarify-gun-rights-under- second-amendment.html [https://perma.cc/V5HQ-HCDY] (stating that the should seek to further describe what it believes the Second Amendment protects regarding gun 342 342 C former Senator Frank Lautenberg who who stated that Frank Senator former the Lautenberg 5:12AM), 5:12AM), the on quotes (gathering [https://perma.cc/FEJ3-N9NE] https://www.huffingtonpost.com/2008/06/26/politicians-pundits-react_n_109373.html while disappointing many in favor of stronger gun control. 40986 mqt_102-2 Sheet No. 21 Side B 01/29/2019 13:38:24 01/29/2019 B Side 21 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 22 Side A 01/29/2019 13:38:24 ASE Judges Judges C These AND AND ( 120 HOULD S istoo opaque, too potential limits on on limits potential MENDMENT MENDMENT A OURT OURT Heller C 343 343 Heller ECOND and then ask a court to declare declare to court a ask then and S t, 837 F.3d 678, 684 (6th Cir. 2016) (en OBERTS OBERTS R s Dep - EW EW N EANINGFUL EANINGFUL ) ) 1/17/2019 8:29 PM M They complain that that complain They ELETE 121 D HY THE HY THE OT N :W O THE NEXT BIG GUN CASE ECIDE A ECIDE A note 15. 15. note thin guidance available to evaluate a multitude of state state of multitude a evaluate to available guidance thin Plaintiffs attack regulations alleged to tread too deeply deeply too tread to alleged regulations attack Plaintiffs D .2(D O 119 . supra fundamental rights violationrightsfundamental ROMISE OON P . 102, N Heller )S Section III.A.2 (table detailing circuit court confusion). confusion). court circuit detailing (table III.A.2 Section S , Tyler v. Hillsdale Cty. Sheriff OL Heller ILL cases cited W ELLER - MULR V .See, e.g. .See, .See infra .See .See H 120 121 119 Part II pondered the courage of the Roberts Court and demonstrated quite Second, courts charged with evaluating such legislation are perplexed about about perplexed are legislation such evaluating with charged courts Second, First, First, the Court should clarify the right to keep and bear arms because the IKELY IKELY III. M K L IOCCHETTI IOCCHETTI C Y land. With only only With land. clearly clearly that the Justices consistently decide controversial cases. Also evident than guarantees. constitutional other The tough-to-interpret only other Bill of Rights provisions more thoroughly neglected are the Ninth, rarely invoked and Third, the Tenth across lawsuits of thousands in role starring Amendments. a play to continues Amendment The big difference is that the Second banc). banc). workable workable and widely accepted. balancing Problematically, test however, where the it benefits of resembles gun regulations a to society are weighed vague. vague. Then, they muddle forward intermediate as scrutiny tests they of must their under own various creation. forms of This legal framework is upon the right to keep and bear arms. Generally, a these of litigants language strong employ the a law unconstitutional and issue an injunction to stop its operation. 2018] 2018] C are serious remedies that Amendment that require the Supreme Court specific has yet interpretations to provide provide. more clarity, of legislators will wrestle with Until the the Justices Second their their authority and keep guessing about how to regulate within constitutional boundaries. Officials are hamstrung according unnecessarily to HEAR factor #1. Heller and local firearms regulations, however, presiding lower court judges are left the uses Part This paddles. own their design to but choice little with creek a up HEAR framework to furnish least at a decide Court the few that necessitates key and policy, reasons effective stifles why inefficient, this state of affairs is case. Amendment Second one clarifying Second Amendment looms menacingly over thousands of state since lawsuits and federal from from every relevant federal circuit have decisions. Amendment Second expressed this frustration in their 40986 mqt_102-2 Sheet No. 22 Side A 01/29/2019 13:38:24 01/29/2019 A Side 22 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 22 Side B 01/29/2019 13:38:24 M K C Y istorical istorical Heller and magazines of -court-created dded). if and when those those if and when ). If Chief Justice and many of these these of many and 123 126 [102:309 [102:309 assault weapons assault not to balance the interests interests the balance to not We We know we have been silent Heller note 3. 3. note Heller But, until the Justices provide more supra 124 , ) ) 1/17/2019 8:29 PM ELETE These exceptions have certainly come before Kavanaugh Could Tip Supreme Court Against Gun Control D 125 OT N O MARQUETTE LAW REVIEW LAW MARQUETTE .2(D O Litigation Summary . 102, N p. 374. 374. p. , Nina Totenberg, -Heller -Heller OL Caetano v. Massachusetts, 136 S. Ct. 1027, 1028 (2016). 1028 Ct. S. 1027, 136 Massachusetts, v. Caetano and such balancing may lead to dozens of regulations being overruled overruled being regulations of dozens to lead may balancing such and See See - MULR V Kavanaugh has staked out an unusually strong position in favor of gun rights. In 2011, he .SeePost .See, e.g. .Seeinfra .See, 122 124. 125.a (emphasis (2008) 635 570, U.S 554 Heller, v. Columbia of District 126 122 123 , NPR (July 23, 2018, 7:25 AM), https://www.npr.org/2018/07/23/630286216/kavanaugh-could- AM), 7:25 2018, 23, (July , NPR To this end, there is little doubt that at least three Justices on the current Third, Third, the denial of petitions for certiorari in firearms cases makes little IOCCHETTI IOCCHETTI for years on this issue. But, we told you in when constitutional guarantees are involved, and proceedings further for remanded is case the and you vacated, is appeal on decision did it anyway. The cases cases are both proc consideration. A new decision or two on the breadth and scope of the Second front this on Success results. and policies effective more to lead and regulation throughout throughout the United States. All the while, the Court Supreme could simply, accurately, and somewhat ironically respond, balancing test could upset expectations about firearms and their regulation the Court on close to one hundred occasions since 2008, or neutered when the Court decides its next big gun case. gun big next its decides Court the when or neutered Roberts Court (Alito, Gorsuch, and Thomas) believe the Second Amendment the in Bill of Rights. provisions as the other Early important bit toas every be predictions place Justice Kavanaugh in the same boat. 344 344 against the individual harms to gun owners. Heller This is a no-no according to C guessing game and fulfill its promise in in promise its and fulfill game guessing Amendment] Second [to exceptions the for the justifications exceptions come before us clarity, clarity, trial and appellate judges application to will the continue facts of to their #2. factor to HEAR according wrestle cases. with Courts are unnecessarily confused sense when the Supreme Court stands of the Second interpretation Amendment. Thedefinitive Court as should end the the only referee able to make a Laws D.C. the on that (stating [https://perma.cc/PXW5-BA5V] tip-supreme-court-against-gun-control-laws Circuit, 52-pagewrotea dissentdecision afrom thatupheldD.C.ban aon more than 10 rounds of bullets, plus broad registration requirements.. . . In argued his dissent, that Kavanaugh the Second Amendment, circumstances. of narrowest the in only limited like be can that right fundamental the First Amendment guarantee of free speech, is a 40986 mqt_102-2 Sheet No. 22 Side B 01/29/2019 13:38:24 01/29/2019 B Side 22 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 23 Side A 01/29/2019 13:38:24 130 from from The The to help to help to reach reach to 128 superseded in federal and and federal in Heller Heller s prefatory clause, for The controversial pact the aesthetics of a in light of of light in 129 and and s the looming Second endment 345 345 decision) returned 1,819 cases [hereinafter [hereinafter cases 1,819 returned decision) Second Amendment Heller ) ) 1/17/2019 8:29 PM ELETE D The only states without a case that referenced the Second Second the referenced that case a without states only The OT note 127. 127. note N O THE NEXT BIG GUN CASE See id. supra .2(D , O case are: Arkansas, Kentucky, Nebraska, Oklahoma, Rhode Island, South South Island, Rhode Oklahoma, Nebraska, Kentucky, Arkansas, are: case assault assault weapons bans and public carry regulations Teixeira v. County of Alameda, 873 F.3d 670 (9th Cir. 2017) (stating that the the that (stating 2017) Cir. (9th 670 F.3d 873 Alameda, of County v. Teixeira . 102, N Heller , Teixeira v. County of Alameda, 822 F.3d 1047,1062 (9th Cir.2016), OL These cases stem from state and local gun laws that ban or ). 127 . ]. Many of these cases are certainly appeals from district court decisions where the Second Second the where decisions court district from appeals certainly are cases these of Many ]. - MULR V .See Lexis Search Lexis .See .See, e.g. .See, A Looming Second Amendment Requires Legislators to Guess & See & to Guess Legislators Requires Amendment Second Looming A Heller 129 Puerto Columbia, of District the as well 130.as states forty-one in filed cases showed search The 128 127. A Lexis search Advance for the terms The The Supreme Court decide expeditiously should a firearms case clarifying Subsequently, Subsequently, Part IV designates two firearms-related issues that cry out A. M K IOCCHETTI IOCCHETTI C Y districtcourt should have followed our approach [otherin Second Amendment cases] andrequired at state state caselaw since June 26, 2008 (the date of the SearchLexis Amendment was in play. This double counting of cases in the 1,819 total is appropriate as a new set AmendmentinterpretSecondto case theevery struggle in judges must of by a ruling by en banc a by ruling least some evidentiary showing that gun stores increase crime around their locations. Likewise, the record lacks any explanation as to how a neighborhood. gun store might negatively im Rico, and the Virgin Islands. Amendment and the instance. But, these off-point cases arise far less frequently than cases where the Second Amendment Amendment Second the where cases than frequently less far arise cases off-point these But, instance. underscores still approximation an as here relevant not is total precise a Regardless, play. in squarely is often. far too is invoked Amendment Second unsettled the that point the restrict restrict firearms purchase, possession, and use. Legislators, constitutional boundaries unclear of the right on to keep and the bear arms, often enact laws which are over-inclusive or under-inclusive. In the absence of a clear set of guidelines, lawmakers sometimes fail place. first in the necessary the law was why to as evidence to substantive introduce into the record much amendment also looms over 700 or so state firearms cases since that time. that since cases firearms state over so 700 or also looms amendment federal federal courts bear the greatest burden in the inevitable lawsuits to follow. regulations in over 1,100 firearms cases Junesince 2008. because the Second Amendment plays an unsettled role in thousands of lawsuits lawsuits of thousands in role unsettled an plays Amendment Second the because post- 2018] 2018] requires the only referee capable of solving this legal #3 and #4. factors to HEAR according case dilemma appropriate to act in an for legal clarity easily cases of types These case. gun big next the select should Court the which pass all four factors of the HEAR Framework. But, it is important to begin Amendment. C a decision. A few of these cases certainly invoke the Second Amendment for other reasons for other Amendment Second the invoke certainly cases these of few A a decision. interpret statutes with prefatory clauses similar to the Second Am 40986 mqt_102-2 Sheet No. 23 Side A 01/29/2019 13:38:24 01/29/2019 A Side 23 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 23 Side B 01/29/2019 13:38:24 IN M K EWS W C Y N O T red flag red Historical , PBS , : Fiery Gun , 270 Heller Perhaps these Regardless of of Regardless 131 132 . gun to 21,and (June 25, 2018,11:18 PM), the state level, the gun control control gun the level, state the appears to us to to us to appears Heller ODAY [102:309 [102:309 10 Years After self-defense self-defense has to T judicial judicial test. 29 (2008). (2008). 29 , USA , any even after after even individual right to keep and bear arms. arms. bear and keep to right individual See 2016 Presidential Election Results , https://www.270towin.com/historical-presidential- ). ). ) ) 1/17/2019 8:29 PM IN W Heller ELETE D O OT T N Why States, Not Congress, Are Passing More Gun Laws Gun More Passing Are Congress, Not States, Why O MARQUETTE LAW REVIEW LAW MARQUETTE .2(D O , 270 . 102, N , Eric Tirschwell & Mark Frassetto, Opinion, OL GretchenFrazee, See take place wherever [a] person happens to be, to happens person [a] wherever place take portend all sorts of litigation over public schools, airports, thoroughfares, parks, right any of place the address not and may that even And facilities. various additional government There may There or may not may be a Second right in Amendment some places those what idea no have we but home, the beyond places sliding what be, should them selecting for criteria the what are, number a of one any or them, to apply might scrutiny of scales of other questions. It authorities may is ban firearms not altogether without clear shouldering in the burdens of litigation. The notion that what places public - MULR V .See, e.g. .See, (Mar. 23, 2018, 3:26 PM), https://www.pbs.org/newshour/nation/why-states-not-congress-are- 131 132.628 570, U.S. 554 Heller, v. Columbia of District It It is telling that a multitude of plaintiffs continue to invoke the Second OUR IOCCHETTI IOCCHETTI There, the majority found a clear Second Amendment violation and claimed that the law of District Columbia would fail bump stocks and high capacity magazines, raising the minimum age to buy a buy to age minimum the raising magazines, capacity high and stocks bump debate is largely breaking down along party lines. Democrats have focused their efforts on banning litigants harbor the hope that a lower court, and eventually the Supreme Court, Court, the Supreme eventually court,lower and a that the hope harbor litigants of version strong the adopt will laws that allow police to temporarily confiscate firearms from people deemed to from be deemed people a firearms confiscate threat to others to laws that allow police temporarily or themselves. Republicans have introduced legislation that worship. of wouldplaces in and lots arm parking school teachers and allow guns in RightsRhetoric,SecondbutCourtsBackAmendment Limits elections/timeline/ elections/timeline/ [https://perma.cc/G98R-7UYU] (last visited Dec. 26, 2018) (illustrating the 2012 to likely less are states these that indicates affinity political this Perhaps results). election Presidential pass controversial gun regulations that stir lawsuits or perhaps it is just a very interesting random occurrence. squarely squarely on the table, an unwelcome gift for lower dilemma:the articulated aptly Circuit the Fourth of Wilkinson Harvie courtJudge judges to unpack. why why the Second Amendment makes it into these complaints, its invocation https://www.usatoday.com/story/opinion/2018/06/25/heller-ruling-courts-uphold-gun-control- [https://perma.cc/3XZF-UUEE]. second-amendment-limits-column/729202002/ Dakota,Utah,West and Vermont, Virginia. Interestingly, all statesthese except forRhode Islandand Vermont voted for the Republican candidate (Donald Trump) incandidate (Mitt Romney) in the the 2012 2016election. election and Republican (July (illustrating 20, [https://perma.cc/HNM7-C5ZF] the 2016 Presidential election 2017, results); Timeline: 2:15 2012 PM), Map https://www.270towin.com/maps/2016-actual-electoral-map H 346 346 C passing-more-gun-laws [https://perma.cc/NC6B-WEJ7] (stating that at at that (stating [https://perma.cc/NC6B-WEJ7] passing-more-gun-laws Amendment Amendment even though: (1) it is the poster child for unsettled law regulations and gun most uphold courts lower (2) 40986 mqt_102-2 Sheet No. 23 Side B 01/29/2019 13:38:24 01/29/2019 B Side 23 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 24 Side A 01/29/2019 13:38:24 , 4 (D. (D. 4 2015) 2015) ARRY C O T . 1443, 1515 EV UNS L. R -defense-in-the- , G that courts 76 (9th Cir. 2017) (en banc) , 56 UCLA 347 347 90 (7th Cir. 2011) (evaluating city 90 city (7th Cir. (evaluating 2011) terra terra incognita Implementing the Right to Keep and Bear Arms Arms Bear and Keep to Right the Implementing n v. Cuomo, 804 F.3d 242, 247 (2d Cir. ) ) 1/17/2019 8:29 PM . It also quickly becomes clear why legislators legislators why clear becomes quickly also It . ELETE to zoning rules on the location of new gun gun new of location the on rules zoning to to reasonable licensing and permitting permitting and licensing reasonable to D 135 OT 137 and analyze andthe gun lawsuit analyze in archetypal America N Heller O THE NEXT BIG GUN CASE Leary, No. 16-10181-FDS, 2017 U.S. Dist. LEXIS 199400, *3 at 474. to lifetime firearm bans for convicted felons or the the or felons convicted for bans firearm lifetime to .2(D 139 O See id. See Gun Laws by State: The Complete Guide—2018 . 102, N , Use restrictions commonly stem from prohibitions on firing firing on prohibitions from stem commonly restrictions Use 133 , Kachalsky v. Cacace, 817 F. Supp. 2d 235, 268 (S.D.N.Y. 2011) (evaluating , N.Y. State Rifle & Pistol Ass , Ezell v. City of Chicago, 651 F.3d 684, 689 , Teixeira v. County , of 873 v. County Alameda, Teixeira 670, F.3d 673 , Gould v. O v. , Gould OL 138 terra incognita terra Purchase restrictions generally range from bans on assault weapons weapons assault on bans from range generally restrictions Purchase Possession restrictions typically stem from bans on public carry of in a private facility where a public officer effects an arrest. The The arrest. an effects officer public a where facility private a in whole matter strikes us as a vast should enter only upon necessity degree. and only then by small 134 - MULR V .See, e.g. .See, .See, e.g. .See, .See, e.g. .See, e.g. .See, .See, e.g. .See, .See, e.g. .See, 136 133. 2011) Cir. (4th concurring J., 475 458, F.3d (Wilkinson, 638 Masciandaro, v. States United 134 137 136 138 135 139 To place the looming Second Amendment in the proper context, it is critical critical is it context, proper the in Amendment Second looming the place To Firearms cases begin when a city, county, or state (and seldomly Congress) Congress) seldomly (and state or county, city, a when begin cases Firearms M K IOCCHETTI IOCCHETTI C Y today. To do so, we walk through a case from the enactment of a gun regulation regulation gun a of enactment the from case a through walk we so, do To today. to certiorari denial at the Supreme Court. questi legitimate This example demonstrates the to enter the and dangerous ammunition requirements. ranges ranges in urban cities 2018] 2018] C stores. (2009)). In this case, the court upheld a challenge to a law prohibiting the carrying a loaded handgun handgun a loaded carrying the prohibiting alaw to a challenge upheld court the case, this In (2009)). for standard scrutiny intermediate circuit-court-created a using area park national a within vehicle a in Amendment. Second the in part and in the judgment) (quoting Eugene Volokh, Volokh, Eugene (quoting judgment) the in and part in for Self-Defense: An Analytical Framework and a Research Agenda firearms firearms (concealed/open) are hamstrung (HEAR Factor #1) and judges battle confusion (HEAR Factor in play. is Second Amendment the when decisions reaching #2) in Justifications & Their Regulations 1. Firearms passes a law regulating the: (1) firearm. purchase, (2) possession, or (3) use of a (evaluating zoning regulations on firearms dealers). dealers). firearms on regulations zoning (evaluating (evaluating an assault weapons and large capacity magazine ban). magazine capacity large and weapons assault an (evaluating requirements). carry concealed https://www.gunstocarry.com/gun-laws-state/ [https://perma.cc/9QGD-F8U9] state). by state laws gun (last(listing updated 2018) Mass. Dec. 5, 2017) (evaluating firearms licensing). firearms (evaluating 2017) 5, Mass. Dec. ban on firing ranges). ranges). firing on ban 40986 mqt_102-2 Sheet No. 24 Side A 01/29/2019 13:38:24 01/29/2019 A Side 24 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 24 Side B 01/29/2019 13:38:24 M K It It CTS C Y , the says .A ONN Heller a fact that government government Friedman In In 142 [102:309 [102:309 143 that resembles that the resembles garden- increased increased safety, reduced promote promote public safety and prevent s Safety s Act of 2013 Safety 2013, C serves serves to .(Dec. 7, 2015, 9:57 PM), PM), 9:57 2015, 7, .(Dec. RIB SupremeCourt Rejection ofCaseGun Considered a § 136.005 (2016). § 136.005 .T ) ) 1/17/2019 8:29 PM HIC ELETE D No person shall manufacture, sell, offer or display display or offer sell, manufacture, shall person No , C RDINANCES OT N O ., O MARQUETTE LAW REVIEW LAW MARQUETTE LL .2(D ,I Friedman v. Park Highland Friedman O , 817 F. Supp. 2d at officials 268 York New (citing state who government ARK 144 P These are certainly compelling interests . 102, N s public carry licensing regulation , Gun Violence Prevention and , Children Prevention Violence Gun , Jefferies(E.D., 833831,2017)Sessions,Pa.Supp. (evaluatingF.3d v. 278 mental OL Some of these laws are strict while others are more mundane. 141 Kachalsky een Glantoneen Karen & Berkowitz, 140 IGHLAND and grief. No parent sending a child to school, to the park or to the movies movies the to or park the to school, to child a sending parent No should have to worry about whether they will come home or is magazines high-capacity and weapons assault not. Banning one common-sense action to reduce gun violence and protect violence mass potential from communities our and children our - MULR V .See, e.g. e.g. .See, .See, ) (emphasis added). added). (emphasis ) 142.2014). Ill. (N.D. 895 3d Supp. F. 68 143. H 140 141 144. Dahl The The three justifications for gun regulations Highland Park Mayor Nancy Rotering detailed the purpose of the ban in an an in ban the of purpose the detailed Rotering Nancy Mayor Park Highland To shepherd the analysis, this Section evaluates a 2014 firearms To a case this the analysis, from shepherd evaluates Section 2014 firearms IOCCHETTI IOCCHETTI crime Victory by Highland Park interview: interview: decrease (3) and crime, fight (2) children), of safety the (especially safety public gun violence. plaintiffs plaintiffs challenged a Highland Park, Illinois assault weapons/large capacity magazineban that declares: for sale, give, lend, transfer ownership Weapon of, acquire or or Large possess Capacity any Magazine, unless Assault rare]. exceedingly are exemptions and such law . . . expressly exempted [by city variety variety firearms challenge in both process and result. 47 (Reg. Sess.); 47 Sess.); (Reg. stated that the state 348 348 mentally ill. C complicates complicates matters greatly for gun rights advocates when any applied. legal test is the Circuit Seventh http://www.chicagotribune.com/news/nationworld/ct-supreme-court-highland-park-assault-weapons- [https://perma.cc/MH6V-9PQY]. ban-20151207-story.html illness and firearms). and illness crime, decreased violence decreased crime, when blind flying of sort was Park Highland of City the that note to important is and topic the on case Court Supreme no is There law. this enacting little little about non-handguns used for self-defense either inside or outside of the home. This case illustrates the first HEAR factor at work 40986 mqt_102-2 Sheet No. 24 Side B 01/29/2019 13:38:24 01/29/2019 B Side 24 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 25 Side A 01/29/2019 13:38:24 ). Often, these 146 have brought this suit The language from the the from language The 147 349 349 ) ) 1/17/2019 8:29 PM ELETE D OT N O THE NEXT BIG GUN CASE .2(D O (stating that the NRA and Police Officers Association . 102, N id. id. Their main argument is generally that the law in question is an an is question in law the that generally is argument main Their , Second Amendment rights are at risk. , , Jackson v. City of San Francisco, 746 F.3d 953, 958 (9th Cir. 2014) (showing that that (showing 2014) Cir. (9th 958 953, F.3d 746 Francisco, San of City v. Jackson , OL 145 Amendment Amendment right of Plaintiff Friedman and Plaintiff [the bear arms by prohibiting his ownership and of possession of firearms in his home that are commonly possessed by law-abiding citizens home. in the [i.e., self-defense including purposes, assault rifles] Defendant does for not lawful have interest in depriving Plaintiff a of his Second compelling Amendment governmental right to own [i.e., purposes lawful and for citizens law-abiding possess by possessed firearms that are commonly home. in the self-defense including rifles], assault of request that City WHEREFORE, respectfully Plaintiffs Highland Park City Code [banning assault weapons and Ownership Ownership of firearms that are commonly possessed by law-abiding citizens [i.e., purposes, including assault self-defense in rifles], the intruder, theis under acriminal right home Second fundamental against for a lawful Constitution. States United the to Amendment Defendant has infringed the fundamental Second - MULR V ). .See, e.g. .See, .See, e.g. .See, .See, e.g. .See, 145 146 147 Step Step two begins as the law generates press and affects the ability of May May 15, 2009, Espanola Jackson, Paul Colvin, Thomas Boyer, Larry Barsetti, David Golden, M K IOCCHETTI IOCCHETTI C Y Highland Highland Park complaint is typical and prays for both a judgment declaratory follows: as relief and injunctive plaintiffs are plaintiffs aided by state or national gun rights groups like the State Illinois Rifle Association or the National Rifle Association, who join the suit fearing 2018] 2018] officials as guessing to which laws will pass constitutional muster. Hold tight step one. is merely law the of the enactment because Lawsuits Inevitable 2. The a point, this At choice. of firearm their use or possess, purchase, to individuals group of gun owners, prospective gun owners, and/or challenge firearms dealers will new firearms Amendment. legislation in court and invoke the Second C on Noemi Margaret Robinson, the National Rifle Association, and the Officers Association San brought suit against Francisco the City and County of San Veteran Francisco Police on behalf of their members, who have an interest defense. in keeping handguns within their home for self- 40986 mqt_102-2 Sheet No. 25 Side A 01/29/2019 13:38:24 01/29/2019 A Side 25 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 25 Side B 01/29/2019 13:38:24 M K C Y great 8, Friedman v. in in real-world fundamental fundamental rights the scope of judicial judicial of scope the [102:309 [102:309 148 and then ask the court to declare declare to court the ask then and As Applied to Their Cases Cases Their to Applied As step three or the battle of motions stage or of the three stage step battle motions Heller ) ) 1/17/2019 8:29 PM ELETE D OT N O MARQUETTE LAW REVIEW LAW MARQUETTE .2(D O . 102, N OL ...... large capacity magazines] . . . be declared unconstitutional unconstitutional declared . . be . magazines] capacity large the against and favor their in entered be judgment that and . costs. . . of an award including Defendant, Defendant, including an award of costs. of an award including Defendant, . .. WHEREFORE, Plaintiffs respectfully request that an order be entered permanently enjoining Code [banning City of Highland Park City enforcing from the Defendant assault weapons and large capacity magazines] and that judgment be entered in their favor and against the Judges Are Perplexed by by Are Perplexed Judges This Section evaluatesthe second HEAR factor B. - MULR V lack of a compelling governmental interest governmental compelling a of lack 148. Verified Complaint for Declaratory Judgment and Injunctive Relief at 7 There must be a moment in every contemporary firearms There case must be in firearms contemporary when a every lower moment The next critical steps in the typical firearms case entail motions for These complaints generally use the strong language of IOCCHETTI IOCCHETTI court judges put their heads court judges in and frustrated their put astheir hands, to perplexed heads what and with begin to enough controversial are cases gun in issues The next. comes be wasted may in the case work all the that the factthat Add to consequences. Heller of a firearms lawsuit. firearms of a Judgment Summary and Dismissal for Motions 1. The dismissal and summary judgment. At this point, the district court judge or confusion that begins after these types of complaints are filed cases. We we off up pick left where confusion by lower court judges and circuit-court-crafted legal tests that tiptoe tiptoe that tests and courtlegal by circuit-court-crafted lower confusion judges and dicta. precedent Court Supreme ambiguous around and are These operation. its stop to injunction an issue and unconstitutional law the Amendment Second the of interpretations specific require that remedies serious that the Supreme Court has yet to provide. And, until legislators better grasp the constitutional boundaries of their authority to limit the right to keep and bear arms, the Second Amendment will tocontinue awkwardly in loom future cases. This leads to the second HEAR factor to be discussed next 350 350 C City of Highland Park,68 F. Supp.3d 895(N.D. Ill.2014) (No. 1:13-cv-9073). 40986 mqt_102-2 Sheet No. 25 Side B 01/29/2019 13:38:24 01/29/2019 B Side 25 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 26 Side A 01/29/2019 13:38:24
PM
150 8:29
Heller . . . of . . of . the
The following following The 149 for guidance. Ruling Ruling guidance. for ] is far from self- did not announce announce not did ONFUSION C 351 351 Heller Heller Heller
pars[ing] pars[ing] these passages of 151 t, 837 F.3d 678, 681 (6th Cir. 2016) (en banc) banc) (en 2016) Cir. (6th 681 678, F.3d 837 t, TATEMENT OF TATEMENT s Dep s S We thus find ourselves in agreement
). ). ) 1/17/2019 as if they contain an answer to the question question the to answer an contain they if as n v. Cuomo, 804 F.3d 242, 253 (2d Cir. 2015) (footnotes ELETE D Heller OT challenges challenges based on those rights are not beaten which level of scrutiny applies but cautioned that Amendment challenges. The Court did imply that imply did Court The challenges. Amendment standards of scrutiny that we have applied to declined to say applications which, of the accepting Second that Amendment would many Amendment rights, pronouncements [in relative futility of Heller evident. evident. Indeed, the Court itself acknowledged with th offered little guidance for resolving future Second Second future resolving for guidance little offered N O THE NEXT BIG GUN CASE (D
the the lower to courts have struggled delineate the of boundaries the right 2
.
O
N
102, and and
SSUE . Bans Large Large I , Tyler v. Hillsdale Cty. Sheriff Cty. Hillsdale v. Tyler , Assault Based onBased Based onBased OL Weapon Weapon Capacity Capacity Magazine Magazine Convictions Convictions V
Misdemeanor Misdemeanor Misdemeanor Misdemeanor Firearms Bans Firearms Firearms Bans Firearms
MULR
-
.See, e.g. .See, 150.omitted). citations (internal 2011) Cir. (1st 23 12, F.3d 644 Booker, v. States United 151. N.Y. State Rifle & Pistol Ass 149
First IRCUIT M K Third Second C IOCCHETTI IOCCHETTI C Y (remarking that, 2008, since (remarking [ in Court Supreme the by recognized omitted).
2018] 2018] to look to forced is case the hearing panel appellate on these motions is a brutal endeavor opinion from the when Court on the these specific issue in front judges of them. lack In fact, judges a definitive often express this confusion/frustration in their opinions. C chart chart presents a taste of this confusion, from all twelve relevant circuit courts, which also includes some not-so-subtle nudges designed to prod the Supreme Court into clarifying the Second Amendment. This is not a circuit split in the traditional sense. Rather, this confusion is more of a consensus plea from the guidance clearer for courtslower 40986 mqt_102-2 Sheet No. 26 Side A 01/29/2019 13:38:24 01/29/2019 A Side 26 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 26 Side B 01/29/2019 13:38:24
M K PM
and and C Y are are 8:29
(internal (internal
Heller decision decision
Heller Heller the district court court district the
which the which 153 ONFUSION C
[102:309 [102:309 678 (4th Cir.2010) (stating thatto
152 Put simply, we have no - to mean that any law barring . . . that the banned assault weapons weapons assault banned the that . . . TATEMENT OF TATEMENT Heller S ) 1/17/2019 ELETE D OT properly properly subjected the FSA to intermediate power to extend Second Amendment protection to to protection Amendment Second extend to power the weapons of war explicitly that the that rule to excluded prudent it find also we Nevertheless, from even if the such banned assault weapons and coverage. large- protection Amendment Second scrutiny scrutiny and correctly upheld it as constitutional nor any court of burdening appeals has Second held Amendment that laws rights evade by protected not are magazines large-capacity and the Second Amendment. That large-capacity magazines is, are among those arms we are back by the Government supplying a rational basis basis rational a supplying Government the by back for limiting interpreted . . . Some them. judges . . . have self-defense is per se unconstitutional; that is, no Court Supreme the neither But needed. is scrutiny capacity capacity magazines are somehow entitled to convinced convinced that the banned assault weapons and Court singled out as being beyond the Second persons persons with Second Amendment possessing lawful rights firearms in the home from even for N O MARQUETTE LAW REVIEW LAW MARQUETTE (D Sessions v. Binderup, 137 S. Ct. 2323, 198 L. Ed. 2d 746 (2017), (2017), 746 2d Ed. L. 198 2323, Ct. S. 137 Binderup, v. Sessions
2
.
O y Gen. U.S., 836 F.3d 336, 344 (3d Cir. 2016) (en banc) (internal citations UnitedStates v. Chester, 628 F.3d673,
N
102, and and
SSUE Binderup v. Sessions, 137 S. Ct. 2323, 198 L. Ed. 2d 746 (2017). . Bans Large Large I Assault OL see also Weapon Weapon Capacity Capacity provides an answer to [the question at issue in this case], it would be found in the the in found be would it case], this in issue at question [the to answer an provides Magazine Magazine V
). nderup v. Att
Heller
MULR
- cert. denied sub nom. s truncated discussion of the limitations on the right to bear arms preserved by the Second 152. Bi 153. omitted) (emphasis banc) (en (4th Cir. 2017) 121 114, 849 F.3d Hogan, v. Kolbe extent IRCUIT Fourth C IOCCHETTI IOCCHETTI citations omitted); omitted); citations
352 352 C cert. denied sub nom. sub denied cert. the Court Amendment. omitted), omitted), 40986 mqt_102-2 Sheet No. 26 Side B 01/29/2019 13:38:24 01/29/2019 B Side 26 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 27 Side A 01/29/2019 13:38:24 s
, PM
See See must 156 8:29
Heller In the 2017
], but we
as ifthey contained Heller
Heller 155 that that some form of . regulatory regulatory measures ONFUSION C 353 353 Heller Heller Heller
154 TATEMENT OF TATEMENT S t, 837 F.3d678, 681 (6th Cir. 2016)(en banc). ) 1/17/2019 did not set forth an analytical framework s Dep ELETE D Heller Beyond [hinting in OT explicit explicit about challenges should be adjudicated how now that the Second settled. been has guarantee individual-rights an Amendment constitutionality constitutionality of these by recognized right the of boundaries the delineate not was Court the required], is scrutiny heightened with which to evaluate firearms future regulations cases. in Nor has this court, since [covering [covering felons and the arms] of sale commercial mentally the and places, sensitive ill, guns in was not thoroughly explained [in explained explained how to determine whether the federal Amendment. Second the with comport bar at laws But our fellow courts of appeals have filled the N s ambiguity, Judge Easterbrook of the Seventh Circuit commented Sheriff Ezell v. City of Chicago, 846 F.3d 888 (7th Cir. 2017). O THE NEXT BIG GUN CASE
(D
2 See Id.
.
O Heller n ofn Am. Bureau v. of Alcohol, Tobacco, Firearms &Explosives, 700 F.3d N
to to on ] opinion ] is code; not it opinion a is comprehensive just for an the explanation Court 102,
in this case through his warning that people should not expect too much from a from much too expect not should that people his warning through case in this SSUE . I Firing Firing We do not think it profitable to parse these passages of of passages these parse to profitable thinkit not do We Mental Mental Fitness Ban on on Ban Ranges Possess Possess OL Unlawful Firearms Firearms Firearms Possession Possession Purchases V of Firearms of
Court OrderCourt Age Limits Limits Age While Under Under While Heller l Rifle Ass Rifle l Heller
United States v. Skoien, 614 F.3d638, 640(7th Cir. 2010) (en banc). Judge Easterbrook
MULR
- 154. Nat 155. Cty. Hillsdale v. Tyler 156. Ezell v. City of Chicago, 651 F.3d 684, 701 (7th Cir. 2011). This issue culminated in a opinion, the court struck down major restrictions on firing ranges in the city of Chicago on the the on Chicago of city the in ranges firing on restrictions major down struck court the opinion, Fifth IRCUIT Sixth M K Eighth at 890. On the issue of of issue the On 890. at Seventh C IOCCHETTI IOCCHETTI C Y
2018] 2018] C 185, 194 (5th Cir. 2012) (footnote omitted). omitted). (footnote 2012) Cir. (5th 194 185, name. same the by case 2017 Ezell use. firearms in proficient become to residents Chicago of ability the hindered laws the that belief id. in a different case: case: different a in was defending SupremeCourtcaseoutsidequestiondeciding the of presented. wrote,thatjudicialHe opinions not be confused with [comprehensive] statutes, and general expressions must be consideration. under readsubject in light of the an an answer to the question [in this case]. such as questions the one we must the have told confront, Justices us that the They have been left matters are precautionary language. Instead of resolving open. . . . The [ disposition. 40986 mqt_102-2 Sheet No. 27 Side A 01/29/2019 13:38:24 01/29/2019 A Side 27 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 27 Side B 01/29/2019 13:38:24
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venth Circuitventh case, Whatever Whatever the ). ).
and exclusions from Second ONFUSION C [102:309 [102:309
158
159 157 TATEMENT OF TATEMENT , the Supreme Court did not specify S limits . . . on the books in 1791 in books the . . on . limits ) 1/17/2019 Heller ELETE D In In OT the case. Justice Thomas and dissented, Justice with Gorsuch Justice Thomas writing that he Amendment] encompasses public Yet, a dissent from carry a denial of certiorari binding is not authority that would create clearly Amendment protects individuals seeking to carry firearms outside the home, and the framework by which courts are to evaluate laws regulating statute challenged under the Second Amendment, Second the under challenged statute review is not appropriate. from this court or the from case [a in certiorari of Supreme denial the from dissent Court, [the hear to declined Court The . . . Circuit]. Ninth the know [from an opinion of a sister circuit] at least what level of scrutiny courts must apply to a standard standard governing the protection accorded the acquisition Second of firearms, Amendment these vague allegations cannot possibly state . . . for relief . claim a N O MARQUETTE LAW REVIEW LAW MARQUETTE (D
2
.
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41, instead of the Supreme Court, to make the assertions about the propriety 102, Sell
SSUE . I Property Public Second Second Right to to Right OL Carry of Carry Firearms Firearms of Engineers Engineers of V
on Army Corps on Army Amendment Amendment Gun Restrictions
MULR
- , 614 F.3d at 640 at 614 F.3d , 157. United States v. Bena, 664 F.3d 1180, 1182 (8th Cir. 2011) (quoting a Se a (quoting 2011) Cir. 157. (8th 1182 1180, F.3d 664 Bena, v. States United 158. Teixeira v. County of Alameda, 873 F.3d 670, 679, 679 n.10 (9th Cir. 2017) (en banc) 159. Cir. (10th 5718, *21 LEXIS App. U.S. 2018 No. 17-1147, Colo., Englewood, v. Sandberg IRCUIT statutoryprohibitions possessionthesome on weapons by ofpersons Ninth Tenth C Eleventh IOCCHETTI IOCCHETTI
354 354 C Skoien of Amendment protection not having to mirror (quoting United States v. Chovan, 735 F.3d 1127, 1137 (9th Cir. 2013)). 2013)). (9thCir. 1137 1127, F.3d 735 Chovan, v. States United (quoting Mar. 7, 2018). 40986 mqt_102-2 Sheet No. 27 Side B 01/29/2019 13:38:24 01/29/2019 B Side 27 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 28 Side A 01/29/2019 13:38:24
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160 8:29
) (internal (internal )
This may be 161 162 that lamented that lamented that the while while evidence Seeking to ferret ferret to Seeking 163 Heller ONFUSION C 355 355 -depth examination of the rs, rs, 212 F. Supp. 3d 1348, 1359 (N.D. the the most preferred in firearm the nation case from the Seventh Circuit. Circuit. Seventh the from case s dissent in saving lives saving would fail constitutional muster. TATEMENT OF TATEMENT S any of the standards of scrutiny that we have applied applied have we that scrutiny of standards the of any Friedman ) 1/17/2019 ). ).
majority did not use that term to describe the ELETE D s home and family, and home s OT laws almost always aim at the most treatment manages to be mute on how to review goals and the efficiency of its means. But gun goal compelling guidance. firearm possession, remains unclear. remains possession, firearm this Despite lack of guidance from the Supreme Court, the approach step two a adopted has issue, the address peculiar puzzles for courts. In other areas, after iPhone. And by its own admission, that first of their effects is almost always of deeply contested. istheir effects almost always little offered has Court Supreme the that, of top On Eleventh Circuit, along with most other circuits to to circuits other most with along Circuit, Eleventh N O THE NEXT BIG GUN CASE approach. Heller (D
2
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O N 29 (stating that under
102,
SSUE . I Public , District of Columbia v. Heller, 554 U.S. 570, 634 (2008)634(disagreeing570,DistrictU.S. ColumbiaHeller,554 , of v. withJustice OL Carry of Carry Firearms at 628 at V
enn v. District of Columbia, 864 F.3d 650, 655 (D.C. Cir. 2017) (internal citation interest-balancing
MULR
no other enumerated constitutional right whose core protection has been subjected to a
- and use for protection of one .See id. id. .See .See, e.g. .See, , the Court did not lay out any test to evaluate firearms regulations, s proposed interest-balancing test for the Second Amendment and stating that the majority 160. Inc. Georgiacarry.org, v. U.S. Army Corps of Eng 163 161. Wr 162 There was also confusion in the
D.C. IRCUIT M K keep C IOCCHETTI IOCCHETTI C Y citation and footnote omitted). omitted). footnote and citation The plaintiffs The were plaintiffs careful to refer to the ability to keep and bear arms as a fundamental right. The Second Amendment guarantee, though it was likely implied. because fundamental rights are accompanied by the strict scrutiny test. And, in in And, test. scrutiny strict the by accompanied are rights fundamental because Heller particularly for weapons more dangerous than handguns.
2018] 2018] C out such a test, Judge Easterbrook wrote: wrote: Easterbrook Judge test, a out such Ga. 2016) (internal citation omitted) (citing Justice Breyer to enumerated constitutional rights, banning from the banning rights, home to constitutional enumerated to to freestanding freestanding majority did not provide more guidance). omitted). omitted). Breyer knew of 40986 mqt_102-2 Sheet No. 28 Side A 01/29/2019 13:38:24 01/29/2019 A Side 28 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 28 Side B 01/29/2019 13:38:24 M K C Y Under this 165 [102:309 [102:309 12 (7th Cir 2015). Cir (7th 12 164 The following chart illustrates how preliminary injunction request). 166 . For example, the assault weapons ban set limits on the regulation of The central role of representative ) ) 1/17/2019 8:29 PM at least in their homes. The public carry bans bans carry public The homes. their in least at Heller ELETE D OT N O McDonald MARQUETTE LAW REVIEW LAW MARQUETTE .2(D O and at 970 (denying the plaintiffs . 102, N id. , OL Heller bearing arms being something that people do in public. So, Judge Judge do in public. So, people that something being arms bearing may be struck down as prohibiting residents to use their weapon ...... democracy is no less part of the Constitution than is the Second Second the is than Constitution the of part less no is democracy Amendment: when there is no definitive constitutional rule, process. legislative theto left are matters firearms; but within those limits, they leave matters open. The The open. matters leave they limits, those within but firearms; best way to evaluate the crime, relation and self-defense among is assault through the weapons, political scholarly process debate, and not by parsing ambiguous passages in the So far, however, the Justices have . . requires. . Amendment declined Second the review substantive much to specify how . . . - MULR V .See, e.g. .See, arms 165. 2014). Cir. (9th 965 953, F.3d 746 Francisco, San of City v. Jackson 166 164. 410 406, F.3d 784 Park, Highland of City v. Friedman Forced Forced to rule on cases just like this, courts tend to run the law at issue This is a very interesting point. The other branches are designed to do most most do to designed are branches other The point. interesting very a is This Friedman IOCCHETTI IOCCHETTI Easterbrook is surely correct on the idea of legislators going to work on firearms firearms on work to going legislators of idea the on correct surely is Easterbrook long for silent not be may Court is silent. the However, Court when the policy would This ago. years guidance this have to appropriate been have would it and have allowed Highland Park to tailor Amendment. Second of the boundaries the assault weapons law within the test This asks scrutiny. whether of a through intermediate form watered-down the law governs conduct interest. protected governmental important an to tailored by is law the whether the Second Amendment and, if so, of choice to defend themselves defend to choice of the be down struck could the as to country and right violating throughout keep bear of the governing when not prohibited from doing biggest Theso front. by firearms a the on constitutional happening rule. been has what exactly is this And, the if naught for be may efforts their that is makes Article this counterargument new Roberts Court strengthens in confusion/frustration) were resolved: resolved: were confusion/frustration) the cases detailed above (where judges wrote in the opinions about their 356 356 C test, test, the regulation is generally upheld. 40986 mqt_102-2 Sheet No. 28 Side B 01/29/2019 13:38:24 01/29/2019 B Side 28 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 29 Side A 01/29/2019 13:38:24
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C cert. denied denied cert. 168 -old, non-
167
es an important and cert. denied sub nom. 170 48 (2d Cir. 2015). Cir. (2d 48
EASONING OF THE 357 357 R
& 169 SED U , 804 F.3d 242, 247 242, F.3d 804 , EST T intermediate scrutiny standard. scrutiny intermediate law federal a that held Circuit Third The banning firearm possession more by punishable crime by a of convicted those than one year in prison did not apply to the plaintiffs in this case; the opinion promote the responsible use The court upheld the assault of weapons finding ban magazine capacity large and that they fall outside of the scope of the Second Amendment. The court held that a federal law banning banning law federal a that held court The of convicted those by possession firearm a crime punishable by more than one year in prison passed the circuit-court- created intermediate scrutiny standard government interest violence gun domestic in preventing New aspects, in most upheld, The court York and Connecticut assault weapons regulations magazine capacity large and circuit-court-created the using violent misdemeanors violent domisdemeanors not permit the [the like people disarming that inference two defendants in these cases] will ) 1/17/2019
ELETE 836 F.3d 336, 351, 356 (3d Cir. 2016) (en banc), banc), (en 2016) Cir. (3d 356 351, 336, F.3d 836 D INNER OT N W Plaintiffs O THE NEXT BIG GUN CASE (D
2
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Based
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. and and SSUE Bans Assault Large Large I OL Firearms Firearms Assault Weapon Weapon Weapon and V Capacity Capacity Bans Based Based Bans Bans Convictions Convictions
Magazine Magazine Large Capacity Capacity Large Magazine Bans Magazine Misdemeanor Misdemeanor Misdemeanor Misdemeanor
MULR
- Sessions v. Binderup, 137 S. Ct. 2323, 198 L. Ed. 2d 746 (2017), (2017), 746 2d Ed. L. 198 2323, Ct. S. 137 Binderup, v. Sessions 170.banc). (en 2017) Cir. (4th 137 114, F.3d 849 Hogan, v. Kolbe 167. 2011). (1stCir. 26 12, F.3d 644 Booker, v. States United 168. 169. First IRCUIT M K Third Fourth Second C IOCCHETTI IOCCHETTI C Y Binderup v. Sessions, 137 S. Ct. 2323, 198 L. Ed. 2d 746 (2017) (internal citations omitted). omitted). citations (internal (2017) 746 2d Ed. L. 198 2323, Ct. S. 137 Sessions, v. Binderup sub nom. sub
2018] 2018] C 40986 mqt_102-2 Sheet No. 29 Side A 01/29/2019 13:38:24 01/29/2019 A Side 29 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 29 Side B 01/29/2019 13:38:24
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C
171 174
173 EASONING OF THE [102:309 [102:309 the right of law-abiding, R
& 172 SED 11(7th Cir.2011). U EST t, 837 F.3d678, 699 (6th Cir. 2016)(en banc). T standard, standard, a series of federal laws bear bear arms is limited to peaceable or as Amendment Second the characterized responsible responsible citizens to home. and hearth of defense use arms in The The court injunction of a ban granted on firing ranges in a the city of Chicago as violative preliminary of the Second Amendment. The court held that a law people prohibiting under no-contact court from orders possessing firearms because violate the Second Amendment does not common-law tradition that the right to guaranteeing The court upheld, under court-created the circuit- intermediate scrutiny prohibiting federally licensed firearms The court remanded to the district court to apply the circuit-court-created dealers dealers from selling firearms to people age. of years twenty-one under institution. intermediate intermediate scrutiny test where the plaintiff in challenged a federal a case law placing a possession lifetime for ban individuals on who been gun have committed to a mental ) 1/17/2019
s Dep ELETE D INNER OT N Sheriff Plaintiff Plaintiff W O MARQUETTE LAW REVIEW LAW MARQUETTE (D
2
.
O n ofn Am. Bureau v. of Alcohol, Tobacco, Firearms &Explosives, 700 F.3d
N
102, to to
on . Age Age SSUE Court Order While Under Under I Firing Firing OL Limits Limits Mental Mental Fitness Ban on on Ban Ranges Possess Possess Unlawful V Firearms Firearms Firearms
Possession Possession Purchases of Firearms of l Rifle Ass Rifle l
MULR
- .Ezell v. City of Chicago, 651 F.3d 684, 710 684, F.3d 651 Chicago, of City v. .Ezell 174. United States v. Bena, 664 F.3d 1180, 1183, 1184 (8th Cir. 2011) (emphasis omitted) 171. Nat 173 172. Cty. Hillsdale v. Tyler Fifth IRCUIT Sixth Eighth Seventh C IOCCHETTI IOCCHETTI
358 358 C (quoting District of Columbia v. Heller, 554 U.S. 570, 635 (2008)). 554 (2008)). 635 570, Heller, U.S. v. of Columbia District (quoting 185, 211 (5th Cir. 2012). 2012). Cir. (5th 211 185, 40986 mqt_102-2 Sheet No. 29 Side B 01/29/2019 13:38:24 01/29/2019 B Side 29 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 30 Side A 01/29/2019 13:38:24
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176 8:29
23 (10th OURT C
175 -applied and facial EASONING OF THE 359 359 R
rs, rs, 212 F. Supp. 3d 1348, 1374 (N.D. &
177 SED U EST T right right to in a carry openly public firearm to a man openly carrying a firearm in issue in this case occurred it clearly was not established that Amendment guaranteed the a citizen Second the The District Court denied each of the challenges to the restriction of gun use scrutiny. near residentially schools and zoned day-care centers, districts, other the grounds that county residents may The panel upheld a grant of qualified immunity to a citation issued and searched, detained, police officers who on Army Corps of Engineers property on the ground that the law does not Amendment rights and, even if it does, the law survives intermediate store and the plaintiffs do not have an independent Second Amendment right firearms. to sell ) 1/17/2019
ELETE D INNER OT N W O THE NEXT BIG GUN CASE (D
2
.
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N
102,
. Sell Gun SSUE I Second Second OL Public Right to Property Corps of of Corps Firearms on Army on Army Engineers Carry of Carry V Firearms
Restrictions Amendment
MULR
- 175. banc). (en 2017) Cir. (9th 673 670, F.3d 873 Alameda, of County v. Teixeira 176. Colo., v. No. Englewood, 2018 Sandberg 17-1147, U.S. App. 5718, LEXIS *20 177. Inc. Georgiacarry.org, v. U.S. Army Corps of Eng IRCUIT M K Ninth Tenth C Eleventh IOCCHETTI IOCCHETTI C Y
2018] 2018] C Cir. Mar. 7, 2018). Ga.2016). 40986 mqt_102-2 Sheet No. 30 Side A 01/29/2019 13:38:24 01/29/2019 A Side 30 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 30 Side B 01/29/2019 13:38:24
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178 (internal citations (internal citations
and Heller
EASONING OF THE [102:309 [102:309
R -
& , the Seventh Circuit felt felt Circuit Seventh the , SED U Friedman Heller EST T bear common arms must enable the In In a divided opinion, the D.C. Circuit panel struck down District of Columbia regulations on concealed carry holding ) 1/17/2019
ELETE D INNER OT N Plaintiff W O MARQUETTE LAW REVIEW LAW MARQUETTE (D
2
Justice Thomas filed yet another dissent to a denial of . O
N 12. 182
...... plaintiffs possessed only one more arrow in their quiver 102,
. SSUE I OL Public at 410 at Carry of Carry V Firearms
created its own test. Yet again, this is the second HEAR factor at at second factor the is HEAR this test. Yet again, its own created Friedman v. City of Highland Park, 136 S. Ct. 447 (2015). enn v. District of Columbia,864 F.3d650, 668 (D.C. Cir. 2017). 181 . at 411. 411. at .
MULR Id Friedman
Based on its crabbed reading of reading crabbed its on Based free to adopt a test for assessing firearm bans that eviscerates many of McDonald the protections recognized in
- .See .See .See id. .See 182 181. 180 178. Wr 179. Friedman v. City of Highland Park, 784 F.3d 406, 410 (7th Cir. 2015) In this random sampling of Second Amendment cases from across the
The D.C. IRCUIT Friedman C IOCCHETTI IOCCHETTI whether law-abiding citizens retain adequate means of self- omitted). Park Park could use many other types of firearms to protect themselves. panel panel found that the law passed this novel test and that citizens of Highland work. work. United States, the government won in eight out of twelve. Thisplaintiffs invoking means that the Second Amendment lost their right to keep arms and arguments 66% of bear the time. In the Therefore, Therefore, the court found that the ban did not infringe the right to keep and arms. bear
360 360 C an appeal to the Supreme Court. This petition for certiorari was predictably denied in late 2015. certiorari in a Second Amendment case arguing: arguing: case Amendment in a Second certiorari the government the also government won, and the assault weapons ban was upheld. In lieu of panel divided the test, scrutiny intermediate circuit-court-created prominent the in 40986 mqt_102-2 Sheet No. 30 Side B 01/29/2019 13:38:24 01/29/2019 B Side 30 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 31 Side A 01/29/2019 13:38:24 186 Kavanaugh has ). cannot stand. . . . [and] Heller 2011, 2011, he wrote a 52-page dissent 361 361 Wouldthe ChiefJustice (June 26, 2017), 2017), 26, (June 185 OST Gorsuch Gorsuch Appointment Looks Like a Win and magazines of more than 10 rounds of s ill treatment of treatment ill s [,] ...... [,] .P ASH Roberts voted in favor of gun rights in two cases that ). ). Heller ) ) 1/17/2019 8:29 PM assault weapons assault ELETE , W D note 123 (stating that on the D.C. Circuit, Circuit, D.C. the on that (stating 123 note The lower court OT N Eugene Volokh, Opinion, O THE NEXT BIG GUN CASE supra write about the Second Amendment in this way, or 187 .2(D O note 20 (stating that ). ). see also 50 (Thomas, J., dissenting from the denial of certiorari). . 102, N , Totenberg, supra , Caetano v. Massachusetts, 136 S. Ct. 1027, 1033 (2016) (Alito, J., concurring in OL 183 ...... at 448 at . . . That analysis misreads misreads That analysis ...... [and] I would grant certiorari to prevent the Seventh Circuit Circuit Seventh the prevent to certiorari grant would I [and] . . . from relegating the Second Amendment right. to a second-class - MULR V or Justice Justice Thomas hasin(who joined from Gorsuch dissenting .See, e.g. .See, .See, e.g. .See, .Id. , Sherman, , Sherman, 184 184 185. the denial from J., dissenting (Thomas, (2017) 137 1996 S. 1995, Ct. California, v. Peruta 187 186. This seems to be the big question as Roberts the Court takes newly-configured the stage. 183 Now picture these sentences written in a majority opinion for the Supreme for the in these aNowSupreme written sentences picture majority opinion M K IOCCHETTI IOCCHETTI C Y and bear arms. But, to it is envision easy these words being Justicewritten by Alito Court. Perhaps such an opinion would not be assigned to Justice Thomas who who Thomas to Justice be assigned would an opinion not such Court. Perhaps the the judgment) (concurring, in a per curiam opinion about whether a stun gun is an arm protected by stating: and Amendment Second the of certiorari) (showing that Justice Gorsuch joined the dissent in this Second Amendment case about of carry firearms); public for Gun-Rights Supporters [i]f the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is is Americans all of safety the then Caetano, protect not does self-defense of right fundamental the [i]f left to the mercy of state authorities who may be more concerned about disarming the people safe. them than keeping about and Justice Kavanaugh denial of certiorari in a Second Amendment case). Amendment Second a in certiorari of denial bullets, bullets, plus In . . . broad his registration requirements. dissent, Kavanaugh argued that the Second Amendment, like the First Amendment guarantee of free speech, circumstances. is of narrowest the in a only limited fundamental right that can be 2018] 2018] C heldthat Americans thehave right to have guns,at least for self-defense in their homes. But the court has since rejected repeated attempts to expand on the right of gun ownership, in case. partnew becausea on take Robertsto justices conservative other the join not would Kennedy and staked out an unusually strong position in favor of gun rights. In on ban D.C. a upheld that decision a from https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/26/gorsuch-appointment- looks-like-a-win-for-gun-rights-supporters/?utm_term=.9d298df7be81 JMGU]. [https://perma.cc/YY69- e.g. See, perhaps more importantly, sign on to such an opinion? Who knows and that is is that and Who knows opinion? an such on to sign importantly, more perhaps the entire point. broader and better a end, the In out. finds nation the until and Laws unless vulnerable like the Highland Park question assault may weapons be: Will ban the are newly configured Roberts Court countenance a 40986 mqt_102-2 Sheet No. 31 Side A 01/29/2019 13:38:24 01/29/2019 A Side 31 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 31 Side B 01/29/2019 13:38:24 , , M K C Y EAGUE EAGUE L L . Other the players, the players, Sometimes Sometimes 188 OOTBALL OOTBALL F F definitively L L But, in those rare cases cases rare those in But, AT agrees on this role for the the for role this on agrees [102:309 [102:309 190 Amazingly, the on-field on-field the Amazingly, AT 189 , N , N even even if the decision is wrong, seems 97% of the time. the of 97% ) ) 1/17/2019 8:29 PM s the Best Branch of Government to Make Make to Government of Branch the Best s This Call This Call I
ELETE D OT Court N
O MARQUETTE LAW REVIEW LAW MARQUETTE The
.2(D O . 102, N OL Promise:
s ’ - MULR V .See NFL Instant Replay Process Replay Instant NFL .See .See These Officials Are Really Good Really Are id. Officials .See These .See 188 189 190 An NFL chaos on is game thewith controlled seven referees field keeping Finally, Finally, the Justices should take a clarifying firearms case because the The NFL replay process resembles the American constitutional law system system law constitutional American the resembles process replay NFL The C. Heller IOCCHETTI IOCCHETTI officials make the correct call 95% call correct the make officials a team must challenge a call they feel is incorrect. Other situations, like scoring scoring like situations, Other incorrect. is feel they call a challenge must team a plays and turnovers, are automatically reviewed. employees) located in the NFL Headquarters in New York City. York New in Headquarters NFL the in located employees) government officials have leeway to define and set policy affecting the right as as right the affecting policy set and define to leeway have officials government violate efforts these whether on say final the has Court the But, sure. be to well, tie a with authority shared of mix interesting an presents This Constitution. the going to the judicial branch. An appropriate analogy is the National Football system. review replay instant its andLeague order and watching the players for rules adhere to the published NFL infractions. rules to make each call. They are not allowed to These officials must go rogue because a particular result seems more just. Everyone employees league and management, fans, coaches, on-field officials. In a game, every score, penalties are turnover, and even some called Supreme Supreme Court is the only branch of government constitutionally capable of interpreting the individual right to keep and bear arms of error, they may be reversed from a higher authority. A reversal moves the ball back or forward on the field and often places the teams into an different role in entirely the game. Regardless, the call made by the offsite NFL crew is definitive and there is no appeal sense. little or makes subjective, and public, the of members representatives, Government way. interesting an in lower court judges are like the coaches, players, and officials on the field 362 362 bear and keep to right individual the protect to fails that guarantee constitutional confusion then, will tell. Until time Only time? the of two-thirds at least arms supreme. reign to continue will C https://operations.nfl.com/the-officials/these-officials-are-really-good/nfl-instant-replay-process/ 2018). 10, Aug. visited (last [https://perma.cc/NBC4-NDGK] https://operations.nfl.com/the-officials/these-officials-are-really-good/ FNNL] (last visited Aug. 10, 2018). [https://perma.cc/SZ78- 40986 mqt_102-2 Sheet No. 31 Side B 01/29/2019 13:38:24 01/29/2019 B Side 31 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 32 Side A 01/29/2019 13:38:24 . final final rules available available at Heller These types of of types These 193 . . . not Congress so note 134. 134. note 191 363 363 supra , ) ) 1/17/2019 8:29 PM Gun rights proponents are entitled to defend ELETE D OT N O THE NEXT BIG GUN CASE Why More Than 100 Gun Control Proposals in Congress Since 2011 2011 Since in Congress Proposals Control Gun 100 Than More Why .2(D O (June 20, 2016,https://www.cbsnews.com/news/how-many-gun- (June AM), 6:00 . 102, N EWS OL Implementation of the NICS Improvement Amendments Act of 2007, 81 Fed. Reg. Rebecca Shabad, CBS N , See Gun Laws by State: The Complete Guide—2018 SeeComplete The State: by Laws Gun See Regardless, even if Congress overcame its inertia and started to to started and inertia its overcame Congress if even Regardless, - MULR V in in this case, the Supreme Court in Washington. And, like the NFL .See .See 192 191. 192. 193 The same holds for the Executive Branch side of the equation. For example, example, For equation. the of side Branch Executive the for holds same The Regardless of the potential of seeing their statutes overturned, government Regardless ofof the statutes overturned, government their seeing potential M K IOCCHETTI IOCCHETTI C Y much. President President Obama signed an executive order that pushed for records health the mental disclose to agencies federal other and Social Administration Security the purpose of improving firearms background checks. regulate regulate firearms along with states and local jurisdictions, each of these laws could be immediately challenged in court and, eventually, subject to reversal a of stroke the with could disappear Court. Each Supreme the of a majority by with incompatible theirfinds rules that opinion majority pen on a 2018] 2018] are government of levels all at officers executive and Legislative respectively. entitled to execute a strategy to improve safety and decrease gun violence (in C Have Failed control-proposals-have-been-offered-since-2011/ [https://perma.cc/C7LG-5EYA]. [https://perma.cc/C7LG-5EYA]. control-proposals-have-been-offered-since-2011/ 91702, (Dec. https://www.federalregister.gov/documents/2016/12/19/2016-30407/implementation-of-the-nics- [https://perma.cc/WT2X-6SP5] (stating 19, improvement-amendments-act-of-2007 that the 2016) (codified at 20 C.F.R. pt. 421), implement implement provisions of the NICS Improvement Amendments Act of 2007 (NIAA) that require safer safer within the bounds of the Second Amendment. Supreme Court precedent) to make calls and decide lawsuits. Like the NFL on- NFL the Like lawsuits. decide and calls make to precedent) Court Supreme are they because enforcement of job good very a do judges these officials, field well-trained, and the CourtSupreme has made many constitutional rules clear and transparent enough. In the end, however, everyone on the constitutional place actors should work diligently to adapt the contours of right to keep and bear arms to twenty-first century American problems like systemic gun violence. And they . .have . at least at the state and local level. There is evidence that manytheseof officials trymightily andgoodin faith make totheir communities their individual right to keep and bear arms. Sometimes the plays the legislators legislators the plays the Sometimes arms. bear and keep to right individual their call are effective and important policy goals are achieved. Other times, they stagnate or move backwards and frustrates important some of policy the goals fans monitoring field the on (the officials wither. the like more are judges public) court Lower coaches. who continually Losing advocate for new each play. They must follow the rules as closely as possible (in this case, 40986 mqt_102-2 Sheet No. 32 Side A 01/29/2019 13:38:24 01/29/2019 A Side 32 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 32 Side B 01/29/2019 13:38:24 M K 195 C Y As with the 194 [102:309 [102:309 However, like NFL on-field NFL on-field like However, ). ). ) ) 1/17/2019 8:29 PM ELETE D OT dent Trump signed a Congressional Resolution nullifying these N O MARQUETTE LAW REVIEW LAW MARQUETTE Justice Breyer made this point powerfully in his .2(D O H.R.J. Res. 40, 115th Cong. (2017) (enacted) (providing for congressional . 102, N See , Planned Parenthood v. Casey, 505 U.S. 833 (1992). (1992). 833 U.S. 505 Casey, v. Parenthood , Planned OL - MULR V .See,e.g. dissent: dissent: 195 194. In February 2017, Presi To be fair, uncertainty over the status of any firearm regulation would And finally, lower court judges are the actual officials on keeping the field officials actual are the judges lower court And finally, All All of this clarifies why firearms cases meet the fourth and final HEAR IOCCHETTI IOCCHETTI constitutional constitutional realm and their newest pronouncement will always trump older precedent. This does not mean, however, that new firearms Court cases are from unimportant. the Strong and clear precedent in this area would overturning make firearms laws and executive orders (which would assumedly be much more such compliant with precedent) less much likely. In the end, even considering the wide disagreement between the Justices issues like over the Second controversial Amendment, the Court tends to respect its persist. to tends Court own the on some with unpopular precedent work Even product. this case, the players and most of the fans (members of the public with Second Second with of the public (members fans the of and most the players case, this lower if Even lawsuit. a of form the in challenges issue can rights) Amendment one arms, bear and keep to right the on time the of 95% correct are judges court of the outcome the alter drastically Court could Supreme the from decision big game. Ironically, the NFL rules surrounding the game of football are much firearms. This lack of guidance hurts the people on the field who are actually taking part in the battle. It is time for the ultimate referee to step in and make calls. important a few remain even if the Court issued a series of clarifying opinions in the firearms arena. The Justices will always be the most powerful players in this order order and theenforcing rules. These courts get it right most of the time. This in and, referee a higher to subject always are courts lower of calls the officials, disapprovalunder chapter 5,States8ofUnited ofthe title Code, thesubmittedrule by SocialSecurity Administration relating to implementation of the NICS Improvement Amendments Act of 2007. federal, federal, state, and local laws just described, however, these types of firearms Federal agencies to provide relevant records to the Instant Criminal AttorneyBackground Check System (NICS). General for inclusion in the National federal regulations. 364 364 regulations are subject to nullification by Congress and a future President. In fact, President Trump nullified these mental congressional health resolution just one month after his inauguration. regulations via a joint C Heller and is the Court is in the best position (perhaps the only position) to add 40986 mqt_102-2 Sheet No. 32 Side B 01/29/2019 13:38:24 01/29/2019 B Side 32 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 33 Side A 01/29/2019 13:38:24 writing that that writing In the beginning, Heller e has certainly come guidance on the Second Second the on guidance 365 365 19 (2008) (Breyer, J., dissenting) -depthexamination ofthe Second authoritative ) ) 1/17/2019 8:29 PM ELETE D OT N O THE NEXT BIG GUN CASE .2(D O 196 . 102, N OL at 635 (majority opinion). opinion). 635 (majority at problems. The [majority] decision will encourage legal challenges to gun gun to challenges legal encourage will decision [majority] The regulation throughout the Nation. Because it says little about the standards used to evaluate regulatory leave the decisions, Nation it without clear will standards for resolving those challenges. And litigation over the course of many years, or the mere specter of such accidents and litigation, violence gun against threatens protection effective to without leave cities during that time. threatens severely to limit the ability of more knowledgeable, democratically elected officials to deal with gun-related We Justices are the only officials in the country with the power power the with country the in officials only the are Justices We to definitively interpret the Second Amendment. neglecting to And, do so by more comprehensively in this subject lower case, court judges we and lawmakers across the land to unnecessary legal challenges and hamstring their bad actors guns. with from safer our communities make ability to - MULR V .Id. No one can hold the Justices to these statements. But, the Court did did Court the But, statements. these to Justices the hold can one No Conclusions: The HEAR Factors Call for a Firearms Case at the Court Court the Case at for a Firearms Call Factors HEAR The Conclusions: 196. District of Columbia v. Heller, 554 U.S. 570, 718 197 197 The truth of the matter is that the only only the that is matter the of truth The To conclude, Justice Scalia made a quasi-promise in This This Part illustrates how the four HEAR factors coalesce into an actual M K D. IOCCHETTI IOCCHETTI C Y 2018] 2018] C arms. bear and to keep right the concerning opinion next its in Court Supreme lawmakers lawmakers wrestle with how best violence. They legislate aware fully to that every nearly firearms regulation will protect their communities lack a by Hamstrung Amendment. Second from ambiguous the under challenged be gun of guidance from the Justices, some firearms regulations are over-inclusive Amendment. Second the of contours the about more to say Justices the for (internal citation omitted). omitted). citation (internal firearms firearms case ripe one Amendment, should the itnot toexpect clarify entire field, there [and] . . . will be time enough to exceptions expound we have upon mentioned the if historical and when justifications those for exceptions come the before 40986 mqt_102-2 Sheet No. 33 Side A 01/29/2019 13:38:24 01/29/2019 A Side 33 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 33 Side B 01/29/2019 13:38:24 s M K C Y Heller majority) majority) Heller [102:309 [102:309 s limited guidance causes much Heller ) ) 1/17/2019 8:29 PM ELETE identifying identifying an appropriately postured case to D OT must must be posed. This matters because the contours N O MARQUETTE LAW REVIEW LAW MARQUETTE .2(D O is is all that remains to be discussed. And that factor forms particularly after its strong view of the Second Amendment Amendment the Second of view strong its after particularly . 102, N OL McDonald and - MULR V The The discussion then pivots to the legal challenges where plaintiffs In In the end, a random sampling of cases from each relevant circuit showed The third HEAR factor Heller IOCCHETTI IOCCHETTI the United States as they muddle through their specific cases. This affairs state of satisfies the created second are tests legal where point the to courts circuit the through reverberates HEAR factor which asks that tiptoe around opaque rulings or dicta of whether the Supreme Court. The circuit- confusion the in nowhere (found test scrutiny intermediate court-created 366 366 more for allow would Court the from Clarity are under-inclusive. others while appropriately tailored laws less vulnerable to being struck down by the newly configured Roberts Court. This situation satisfies the first HEAR hamstrung officials factor hindered in of executing their job duties because of unclear authority. their on boundaries constitutional the consistently invoke Second Amendment. of theAdjudicating the meaning Second Amendment in across judges court lower by expressed often is This light frustration. and confusion of C Second the and violence decreasing and safety increasing in interest compelling around tiptoes certainly This arms. bear and keep to right Amendment percentage stand percentage in pronouncement that balancing tests should not be used in this context. context. in this used be not should tests balancing that pronouncement challenges Amendment Second against upheld are regulations firearms the that this let will Court Roberts new the whether to as question The time. the of 66% of a constitutional guarantee are in the mix and only the Court is in the position position the in is Court the only and mix the in are guarantee constitutional a of to add authoritative guidance. This satisfies the fourth HEAR the call. to make in stepping referee ultimate factor of the accept accept and decide the subject of the next Part which delves into the two types of firearms cases Court opinion. a Supreme for petitions of certiorari ripe plenty present that 40986 mqt_102-2 Sheet No. 33 Side B 01/29/2019 13:38:24 01/29/2019 B Side 33 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 34 Side A 01/29/2019 13:38:24 strong , OURT OURT C Heller If the UPREME UPREME S 367 367 IPE FOR s tenacity in this area certainly R AW VERLY L ) ) 1/17/2019 8:29 PM O DJUDICATION A ELETE D OPICS OPICS OT T N O THE NEXT BIG GUN CASE BOVE THE BOVE THE .2(D O (Nov. 29, 2017, 12:02 PM), https://abovethelaw.com/2017/11/supreme- Supreme Court Declines Cert in 4th Circuit Gun Case, So… Let’s Get to AW IREARMS IREARMS L . 102, N F 198 OL WO WO differently. Though the timing and substance of such an opinion opinion an such of substance and timing the Though differently. BOVE BOVE , A rallies. courts courts wo freaking crazy people who think you need an assault rifle to shoot ducks and intimidate counter-protesters at their Nazi -- Elie Mystal, ElieA Mystal, -- matter. States where politicians have the will should get regulating! to The Fourth Circuit says that, even under you can regulate weapons of war. - MULR V IV. T Heller 198. Elie Mystal, The quote that begins this Part is extraordinary. It also advocates a A much better course is for the Justices to explain more clearly how the M K IOCCHETTI IOCCHETTI C Y 2018] 2018] C Regulating! court-declines-cert-in-4th-circuit-gun-case-so-lets-get-to-regulating/ [https://perma.cc/BMP9-4TJ9]. [https://perma.cc/BMP9-4TJ9]. court-declines-cert-in-4th-circuit-gun-case-so-lets-get-to-regulating/ Amendment. version of the to right keep and bear arms. As detailed above, however, many of these regulations cross-your-fingers-and-hope are risky propositions which may be threatened in the likely event that a more conservative Roberts Court reads area area of the law, then the free-for-all described in the quote above will become par for the course. to Few sit expect officials on hands the their awaiting next big firearms case while gun violence tears apart communities. would In vote fact, few for such idle politicians. expeditiously. act should the Court why reason This situation represents yet another odds. its increase Second Amendment is properly . . . Then applied to the respect contours to firearms. of At this these point, however, laws. consistent their with precedent and, therefore, more enactments likely to endure. will If the goal be is more to effectively address the problem of constitutional gun boundaries, violence jurisdictions in this need country to within effective cultivate laws as longstanding opposed to and hyper-reactive laws that remain appeal. Tovulnerable be on fair, if the Court stays the course and continues to ignore this is impossible to predict, the replacement of Justice Kennedy with Justice 40986 mqt_102-2 Sheet No. 34 Side A 01/29/2019 13:38:24 01/29/2019 A Side 34 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 34 Side B 01/29/2019 13:38:24 M K C Y and and Heller Heller longstanding [102:309 [102:309 M-16 rifles and the like the and rifles M-16 Heller only as examples; our list does not 199 ) ) 1/17/2019 8:29 PM 200 . It may be objected that if weapons that that weapons if that objected be may It ELETE Tidbits from Tidbits D Immediately thereafter, the opinion discusses discusses opinion the thereafter, Immediately OT A. 201 N O MARQUETTE LAW REVIEW LAW MARQUETTE laws forbidding the carrying of firearms in such such as schools and buildings, government or .2(D O ,or ,or 27 (emphasis added). . 102, N We think that limitation is fairly supported by the the by supported fairly is limitation that think We OL , 554 U.S. at 635. 635. at U.S. , 554 at626 at 627 n.26 (emphasis added). added). (emphasis n.26 627 at may may be banned, then the Second Amendment right is sensitive sensitive places laws imposing sale of arms commercial conditions and qualifications on the Although we do not undertake an exhaustive historical analysis analysis historical exhaustive an undertake not do we Although today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast prohibitions doubt on the on of possession firearms by felons and the mentally ill service military in useful most are We also recognize another important limitation onWe important the right to another also recognize . . .arms. carry and keep [by protected weapons of sorts [T]he - MULR V .Id. .Id. .Heller .Id. 201 199 200 The The Supreme Court has offered limited guidance on crafting firearms Regardless Regardless of the future consequences, state and local governments are IOCCHETTI IOCCHETTI offers offers the most (though definitive still for opaque) blueprint future regulations and contains a few brief paragraphs that limit the right to keep and bear arms. He wrote: presumptively presumptively lawful regulatory measures potential potential limitations on the Amendment: types of weapons protected by the Second regulations regulations outside of the rule that governments cannot ban possession or use of in the self-defense home. for handguns already already regulating away when it comes to firearms. The most controversial among these laws are: regulations or capacity magazines bans and public on carry of firearms whether assault concealed or weapons in the come and should case Amendment Second big next the that argues large-Part This open. from one of these two areas because each by provided are guidance limited flagged the with begins as Part This ripe Framework. by the HEAR factors. four the area under each to evaluate tidbits these then uses 368 368 C 40986 mqt_102-2 Sheet No. 34 Side B 01/29/2019 13:38:24 01/29/2019 B Side 34 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 35 Side A 01/29/2019 13:38:24 With With 204 interest- 203 369 369 ). even even the Third Branch of body of all citizens capable capable citizens all of body . ) ) 1/17/2019 8:29 PM ELETE [i]f all that was required to overcome the right to keep and bear bear and keep to right the overcome to required was that all [i]f D Heller OT N O THE NEXT BIG GUN CASE the the power to decide on a case-by-case basis .2(D O approach. The very enumeration of the right takes Thetakes enumeration the right approach. very of 28 (internalcitations omitted). . 102, N OL 202 at 628 n.27 (stating that that (stating n.27 628 at at 634 (emphasis omitted). omitted). (emphasis 634 at at 627 at We know of no other enumerated constitutional right whose core protection has been to subjected a freestanding balancing out of the hands of government Government upon. insisting worth really is right the whether bombers bombers and tanks. But the fact that modern and clause prefatory the developments between fit of degree the limited have the protected right cannot change our right. interpretation of the completely detached from the prefatory clause. But as we have have we as But clause. prefatory the from detached completely said, the conception of the militia at the time of the Second of military service, who would weapons that they possessed at bring home to militia duty. the It may in militias as sorts effective as be to militia, a that today of true be well lawful the 18th century, would require sophisticated arms that highly unusual in society at large. are Indeed, it may be true that no amount of small arms could be useful against modern-day - MULR V .Id. .Id. .Id. .Id. 203 204 202 Later Later in the opinion, Justice Scalia noted that no interest-balancing test In In a footnote, the Court also eliminates the rational basis test as a proper M K IOCCHETTI IOCCHETTI C Y arms was a rational basis, the Second Amendment would be redundant with the separate constitutional constitutional separate the with redundant be would Amendment Second the basis, rational a was arms effect. no have would and laws, irrational on prohibitions should be used to adjudicate future Second Amendment cases. He writes: He writes: cases. Amendment Second future to adjudicate should be used 2018] 2018] C tool tool to evaluate alleged invasions of the right to keep and bear arms. this this guidance in mind, the following chart describes what we now know and after we knew what we wish 40986 mqt_102-2 Sheet No. 35 Side A 01/29/2019 13:38:24 01/29/2019 A Side 35 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 35 Side B 01/29/2019 13:38:24
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ELLER H Is Is it intermediate scrutiny, [102:309 [102:309 enacted enacted laws restricting purchase, UESTIONS AFTER AFTER UESTIONS Q enacted enacted laws restricting purchase, PEN ) 1/17/2019 O ELETE D possession, and use by felons unconstitutional? unconstitutional? felons by use and possession, course, course, would not selling include bump prohibitions example. for magazines, on stocks and large capacity possession, and use by those deemed mentally ill ill mentally deemed those by use and possession, unconstitutional? should fall outside of the Second Amendment protect against mass shootings? shootings? mass against protect category? to this apply the paragraph Are the only sensitive places covered by guidance this those where firearms were prohibited in the seventeenth century? That, of course, own? of their the paragraph apply to this category? That, of law makes it onto this list? and only require a rational basis to be upheld? be upheld? to basis a rational require and only Are such laws subject to any level of scrutiny basis? rational beyond Whattest may alower court use to determine whether a Are recently remedied? recently would not include or airports the department of motor vehicles, for example. strict scrutiny, or something else? or something strict scrutiny, Do businesses have Second Amendment rights t these governing laws that mean that Does What about decades-old felonies? felonies? decades-old about What been has illness mental whose those about What What about guards armed in security to schools OT
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- FTER FTER OVERNMENT OVERNMENT A prohibitions prohibitions to above mentioned regulatory lawful lawful presumptively . . . exhaustive not is measures buildings . . . buildings conditions Impose on qualifications and sale the commercial . . . of arms the Consider mentally ill from from ill mentally possessing . . . firearms in Forbid firearms like places sensitive and schools government G from felons Prohibit possessing . . . firearms Prohibit the IOCCHETTI IOCCHETTI 370 370 C 40986 mqt_102-2 Sheet No. 35 Side B 01/29/2019 13:38:24 01/29/2019 B Side 35 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 36 Side A 01/29/2019 13:38:24 PM
8:29
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. ELLER M H , Bre Payton, , A , , https://www.merriam- These These are the types of See, e.g. 371 371 ICTIONARY D UESTIONS AFTER AFTER UESTIONS Q . . However, these are the most critical EBSTER PEN ) 1/17/2019 O -W Heller ELETE D This This means that rational basis review of invasions alleged governs then test But, what is out. and arms? bear to keep right individual the capacity capacity magazines? government. tyrannical carried openly on a public street? weapons that would give a state militia outside the guard national a chance in a a battle against was concealed? firearm Does this include assault weapons and large- ERRIAM OT
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, . M Assault Rifle & Large Capacity Magazine Bans Bans Magazine Large Capacity & Rifle Assault
OL B. V
. . . ELLER The automatic version continues to fire rounds as long as the trigger trigger the as long as rounds fire to continues version automatic The H MULR
EDERALIST - 206 .Magazines Ammunition High-Capacity and Weapons Assault Ban .Assault Rifle .Assault , F 206 205 Assault rifles are commonly defined as hand-held guns, similar to those There are many more open questions when it comes to the Second FTER FTER 8 OVERNMENT OVERNMENT M K A Not an employ interest-balancing or test basis torational adjudicate alleged invasions of the to right individual keep and bear arms . . . G Prohibit unusual and IOCCHETTI IOCCHETTI C Y used by a military force, capable of shooting many rounds very rapidly from a rounds very from rapidly many shooting of force, capable used a by military detachable magazine. dictionary-changes-definition-assault-rifle/ [https://perma.cc/29MZ-JRRQ]. [https://perma.cc/29MZ-JRRQ]. dictionary-changes-definition-assault-rifle/ weapons and public carry in detail for the remainder of this Part. Part. this of remainder the in detail for carry and public weapons Amendment Amendment as interpreted in among them and constitute the group used to evaluate regulations on assault webster.com/dictionary/assault%20rifle webster.com/dictionary/assault%20rifle [https://perma.cc/8DUK-S5D9] (last updated Dec. 7, 2018). It is interesting to note that this definition was last updated in late 2018. Gun rights groups argue that gun control groups intentionally push a misleading definition semi-automaticof assault rifles better to fit them into existing weapons bans on fully automatic weapons. of Rifle” to Control Gun Definition That One Matches “Assault Changes Dictionary Webster Online 201 2018), 2018), https://www.americanprogress.org/issues/guns-crime/reports/2018/03/09/447720/ban-assault-
2018] 2018] C Pushers 40986 mqt_102-2 Sheet No. 36 Side A 01/29/2019 13:38:24 01/29/2019 A Side 36 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 36 Side B 01/29/2019 13:38:24 , M K C Y Assault t actually RITANNICA B a made up and and up made a some some of the guns ounds per minute).perounds guns don the five deadliest deadliest five the Regardless of the the of Regardless 209 hed by the Bureauthe byAlcohol, ofhed assault assault weapon [102:309 [102:309 500 and 1,000 r 1,000 and 500 also also merits a definition at NCYCLOPEDIA The semi-automatic version 207 1980s, 1980s, maintaining that , E is a contentious issue and something that riles up some some up riles that something and issue contentious a is ) ) 1/17/2019 8:29 PM ). ). ELETE An assault weapon without a large capacity capacity large a without weapon assault An note 206. 206. note D 210 OT Definition Definition of What’s Actually an “Assault Weapon” Is a Highly N Stephen Stephen Paddock Used a “Bump Stock” to Make His Guns Even supra O MARQUETTE LAW REVIEW LAW MARQUETTE , assault weapon assault .2(D O (Oct. 4, 2017, 5:55 PM), https://www.cbsnews.com/news/bump-fire-stock-ar- PM), 5:55 2017, 4, (Oct. . 102, N , Jeff Daniels, , Ed Leefeldt, OL , CNBC (Feb. 21, 2018), https://www.cnbc.com/2018/02/21/definition-of-whats-an- 2018), 21, (Feb. CNBC , EWS ). ). large large capacity magazines or LCMs N - MULR V ]. ]. .See Machine .See Gun Machine .See, e.g. .See, .See, e.g. .See, .See Assault Weapons Assault .See , CBS people. 208 207 209 208 210 With such great firepower, assault With assault weapons such can great firepower, do a great deal of damage It should be noted that this broad definition is contentious. Many gun rights rights gun Many contentious. is definition broad this that noted be should It IOCCHETTI IOCCHETTI exactly exactly what constitutes an assault mass shooting incidents [occurring in Las Vegas, Orlando, Aurora, Sutherland Las in Vegas, Orlando, Sutherland Aurora, [occurring incidents shooting mass in a very short period of time. of time. short period in a very that Stephen that Paddock Stephen used to shoot more than 500 people in Las had Vegas to been modified fire as legal, establis perfectly rules were to they according weapons, automatic definitional definitional tiff, the general concept of an assault weapon is American well culture, and known the weapon in itself is perceived much differently than a handgun. This Section will use the common definition laid out here as it helpful is to navigate the cases equipment which use it as well. A related piece of groups to cover more weapons under state and local bans. local and state under weapons more to cover groups magazine would make little sense, sort of l of sort sense, little make would magazine Tobacco, Firearms and Explosives weapons-high-capacity-ammunition-magazines/ [https://perma.cc/F7LH-G5RP] [hereinafter Weapons 15-stephen-paddock-guns-deadlier/ [https://perma.cc/Q77A-SX3M] (stating that 372 372 and some machine guns to as referred Theseare typically is pressed. weapons can discharge over 500 bullets per minute. C rapidly rapidly fires bullets as well. But, each firing requires a separate trigger pull. This means that semi-automatic weapons fire fewer rounds per minute machine than guns but are still effective. brutally Additionally, current technology machine like function and customized be to weapons semi-automatic for allows guns. https://www.britannica.com/technology/machine-gun https://www.britannica.com/technology/machine-gun [https://perma.cc/DYN5-M2AM] (last visited firebetweencan typicalgun 2018)machine(claimingthat7,a Aug. Deadlier this this point. LCMs are ammunition-feeding devices carrying (magazines) at capable least of ten bullets. ContentiousIssue assault-weapon-is-a-very-contentious-issue.html [https://perma.cc/55MJ-WFMX] (writing that gun advocates. In fact, many of the large gun groups consider ambiguous ambiguous term invented by the anti-gun lobby in the 40986 mqt_102-2 Sheet No. 36 Side B 01/29/2019 13:38:24 01/29/2019 B Side 36 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 37 Side A 01/29/2019 13:38:24 It It It It 213 215 (Apr. 25, 25, (Apr. Thisleaves AFETY AFETY even though S 218 217 (Feb. (Feb. 28, 2018), UN G OR OST OST F .P ). 373 373 ASH VERYTOWN just the past five years, lawmakers have have just the lawmakers five past years, ,W , E , 212 216 ) ) 1/17/2019 8:29 PM The Two Assault Weapons Bans Before Congress Are Co- Are Congress Before Bans Weapons Assault Two The ELETE note 206. 206. note D OT These were the weapons of choice to maximize note 192 (stating that that (stating 192 note N supra O THE NEXT BIG GUN CASE 211 , supra .2(D O . 102, N , Shabad, , Christopher Ingraham, Christopher , OL Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, 108 Stat. Also banned were large capacity magazines. This law contained . . 214 - MULR V .See .See .See, e.g. .See, .See id. .See .Id .Id .See, e.g. .See, .See Assault Weapons Assault .See .High Capacity Magazines and Assault Weapons Assault and Magazines Capacity .High 213 217 214 215 216 218 212 211 In the end, the potential for devastation at the hands of a bad actor firing an an firing actor bad a of hands the at devastation for potential the end, the In Since 1994, Congress has been relatively silent on this issue this on silent relatively been has Congress 1994, Since M K IOCCHETTI IOCCHETTI C Y 1796 (1994) (codified at 18 U.S.C. § 921). 921). § U.S.C. 18 at (codified (1994) 1796 expired in 2004 and was not renewed. not and was in 2004 expired assault weapon leads legislators to restrict or ban their use. Even Congress got got Congress Even use. their ban or restrict to legislators leads weapon assault in the act and passed an assault weapons ban that ran 1994 from to 2004. https://www.washingtonpost.com/news/wonk/wp/2018/02/28/the-two-assault-weapons-bans-before- congress-are-co-sponsored-by-195-democrats-and-0-republicans/?utm_term=.bcf6ec2a81df [https://perma.cc/2V7D-9NK3]. 2018] 2018] large capacity magazine. C Sponsored Sponsored by 195 Democrats and 0 Republicans categorized categorized according to: (1) the def activities that are prohibited; (3) whether pre-ban weapons are grandfathered; weapons. these ban or regulate to desiring governments local and state to lifting heavy the assault ban that jurisdictions these from laws Contemporary weapons. of types was styled the Public Safety and Recreational Firearms Use Protection Act and Actand Protection Use Firearms Recreational and Safety Public the styled was prohibited the manufacture, possession, and transfer of semiautomatic assault 2018), 2018), [https://perma.cc/A7Z6-XMFJ]. https://everytownresearch.org/high-capacity-magazines-assault-weapons/ introduced introduced more than 100 gun control proposals and law, in into Congress, passed since been Gabrielle has Giffords them and of one 18 Not 2011. other January in Arizona Tucson, in shot were people very few of the proposals even made it to the House or Senate floor. some some wide loopholes and a grandfather clause that exempted assault weapons and LCMs that were lawfully possessed on the date of its enactment. membersofCongress have vociferously lobbied foranother ban. 1. The Fight Moves to the States: The Typical State/Local Assault Weapons Assault State/Local TheTypical States: the to Moves 1. Fight The Ban casualties. Perhaps surprisingly, however, assault weapons and guns equipped equipped and guns weapons however, assault surprisingly, Perhaps casualties. with magazines high-capacity are only used in 36% of gun crimes overall; the handguns. from comes crime of firearms bulk 40986 mqt_102-2 Sheet No. 37 Side A 01/29/2019 13:38:24 01/29/2019 A Side 37 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 37 Side B 01/29/2019 13:38:24 , M K , of C Y IOLENCE V Violators UN G 224 -weapons/#state -weapons/#state If the gun is not the gun If It was challenged REVENT Kolbe Kolbe v. Hogan 222 P 226 TO TO . TR [102:309 [102:309 The types of guns on the L. C And, as typical in firearms firearms in typical as And, mmunition/assault 221 228 IFFORDS , G ) ) 1/17/2019 8:29 PM just over four months after signing and a week week a and signing after months four over just ELETE D OT The complaint in the case of N O 227 MARQUETTE LAW REVIEW LAW MARQUETTE 220 § 4-301(e)(2) (including guns from a list codified in a Maryland law on on law a in Maryland codified a from list guns (including § 4-301(e)(2) .2(D gun-laws/policy-areas/hardware-a O 23. 23. See id. See . 102, N OL at 121 at 123. at . Kolbe v. Kolbe Hogan,v. 849 F.3d 114, 121(4th Cir. 2017). Md. Code Ann., Crim. Law § 4-303(a) (West 2018). 4-303(a) § (West Law Crim. Ann., Code Md. § 4-301(h). 4-301(h). § 4-306(b)(1). § 4-306(a). § Many of the weapons banned under Maryland law are on a list codified in another part part another in codified alaw are list on Maryland under banned weapons the of Many 225 219 - MULR V 223 .Id. .Id. .Id. id. .See id. .See .See .Assault Weapons: Summary of State Law State of Summary Weapons: .Assault .Id. .See id .See .See 223 224 225 226 227 228 219 222 220 221 As illustrated in Part II, most firearms laws are quickly challenged in court court in challenged quickly are laws firearms most II, in Part As illustrated IOCCHETTI IOCCHETTI May 16, 2013, and it became effective on October 1, 2013. 1, October on effective became it and 2013, 16, May 2. Let the Lawsuits Begin Begin the Lawsuits 2. Let as violations of the Second Maryland Amendment law was no to exception. The keep governor signed the and Maryland law on bear arms, and the assault assault weapon weapons assault an of and receipt or purchase, prohibits transfer, sale, of offer the sale, possession, transport into the state as with the well ability to as hold more the than ten bullets. cases, cases, the lead plaintiffs were joined by various gun rights organizations such on the list, it may banned. be of the Maryland code. Safety). Public are subject to a maximum are oftosubject a three maximum years in andprison a $5,000 fine unless the assault rifle was used in a felony or crime of violence and then the penalties increase. prohibited list include automatic and semi-automatic rifles. and semi-automatic automatic include list prohibited sale, sale, offer for sale, purchase, receipt, or transfer (but not the possession) of a detachable ammunition feeding device for more than ten bullets. in court on September 26, 2013 26, September on court in 374 374 (4) whether grandfathered transportation, weapons transfer, must and be t possession registered; of and (5) grandfathered how weapons are C course, course, invoked the Second Amendment along with Fourteenth Amendment Equal Protection and Due Process challenges. ban only includes LCMs. ban only http://lawcenter.giffords.org/ 2018). 13, Aug. visited (last [https://perma.cc/MFP3-M4KD] prior prior to its effective date! 40986 mqt_102-2 Sheet No. 37 Side B 01/29/2019 13:38:24 01/29/2019 B Side 37 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 38 Side A 01/29/2019 13:38:24
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that the that the LCM
Heller & 229 passes the HEAR HEAR the passes EAPONS W 375 375
Kolbe SSAULT SSAULT Heller A Justice Scalia innoted Justice Scalia : Are government officials hindered in Yes! ) 1/17/2019 : ELETE This excludes assault weapons and LCMs from from LCMs and weapons assault excludes This D 233 OT PPLICATION TO TO PPLICATION UESTION NSWER N A O THE NEXT BIG GUN CASE constitutional boundaries on their authority? authority? their on boundaries constitutional A The The opinion then hints that the types of possessed and weapons founding the of in time the at use common by law-abiding citizens for lawful purposes are Q the Second Amendment executing executing their job duties because of unclear (D
The court then stated that, even if that decision is in 2
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O 230 N ET
24. 24. M 102,
. OL at130. at 123 at
V
The idea is that the types of weapons that would be effective Kolbe v. Kolbe Hogan,v. 138 Ct.S. 469 (2017).
at 131 (quoting District of Columbia v. Heller, 554 U.S. 570, 626 (2008)). (2008)). 626 570, U.S. 554 Heller, v. Columbia of District (quoting 131 at 232 MULR Id. Id.
- .See id. .See .See id. id. id. .See .See .Id. .See .See The majority cited a famous line from from line famous a cited majority The ACTOR FFICIALS 229 231 230 231 232 233. 234 235. omitted). (emphasis (2008) 595 570, U.S. 554 Heller, v. Columbia of District F In a rare and telling twist, the plaintiffs lost in the district court on summary summary on court district the in lost plaintiffs the twist, telling and rare a In
The following chart displays how easily AMSTRUNG AMSTRUNG M K O H IOCCHETTI IOCCHETTI C Y carry carry any weapon whatsoever in any manner whatsoever and for whatever by the Second Amendment is not unlimited [in that it is] not a right to keep and and keep to right a not is] it that [in unlimited not is Amendment Second the by judgment, judgment, won on appeal, and then lost again on rehearing en banc. The en banc court found that assault weapons and LCMs Second Amendment. are not protected by the against against the United framers. the by contemplated States military today are not necessarily the types error, error, the Maryland law passes a circuit-court-created intermediate scrutiny test.
2018] 2018] as the Maryland State Rifle and Pistol Association, store. goods a sporting even and Association, Dealers Firearms the Maryland Licensed C protection. The Supreme Court then predictably denied certiorari in 2017. certiorari denied predictably then Court The Supreme protection. However, However, since the certiorari petition was denied, the LCM assault ban weapons and remains in place subject, as Court: Roberts configured newly the under reversal always, possible to a probable narrowing or 40986 mqt_102-2 Sheet No. 38 Side A 01/29/2019 13:38:24 01/29/2019 A Side 38 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 38 Side B 01/29/2019 13:38:24
M K PM
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238 even even when LCM
Heller & implicitly indicate EAPONS Heller W case involved an en banc [102:309 [102:309 Finally, the the Finally, 237 Kolbe SSAULT SSAULT A
The This connects the militia clause to the : Does confusion by judges reverberate Yes! Are these the types of arms that law- 236 ) 1/17/2019 : ELETE D OT PPLICATION TO TO PPLICATION UESTION NSWER N A O struck down by the newly configured Roberts Court. Court. Roberts configured the newly down by struck right right to keep and bear arms operative clause and the citing citing Blackstone, noted historical prohibitions carryi on indicates indicates how fraught this issue is Adding to the the confusion, with en banc court refused to confusion. where legal tests are created that tiptoe around opaque opaque around tiptoe that created are tests legal where caselaw? Court in Supreme or dicta rulings A Q protected. militias-of-old required militias-of-old people to bring the arms they kept at home to duty. kept at home forhomekeptself-defense.at Accordingly, theirbans even or limited being to subject certainly and broad are questions questions based does example, For guidance: on this that scattered handguns and are Amendment opaque and at assault-style weapons the are periphery on core because the they of a the Second abiding people keep at home for lawful purposes? If to are put weapons assault that indicate that so, would Problematically, Problematically, lawmakers are faced with difficult a district court judge. This is a rare occurrence and court which reversed a panel which had just reversed and LCMs are unprotected or perhaps only slightly protected by the Second Amendment States States cannot divine these answers for certain and so they are hamstrung. Taking a leap of faith in the throughout throughout the circuit courts of appeals to the point states states operate under the belief that assault weapons absence absence of further guidance, Maryland and six other MARQUETTE LAW REVIEW LAW MARQUETTE (D
2
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25. 25. M 102,
. OL at 624 at at 627. 627. at V
MULR
- .See id. .See .See id. .See .Id. ACTOR CHOES OF OF CHOES ONFUSION 236 237 238 F E C IOCCHETTI IOCCHETTI
376 376 C 40986 mqt_102-2 Sheet No. 38 Side B 01/29/2019 13:38:24 01/29/2019 B Side 38 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 39 Side A 01/29/2019 13:38:24
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that that these LCM Heller
Heller & Is the EAPONS W Must the assault assault the Must 377 377
SSAULT SSAULT 240 A
In reaching that decision, the majority majority the decision, that reaching In 239 as as had a few sister circuits ) 1/17/2019 focus on how many assault weapons and large-capacity there owners many how on or magazines owned; are are; or on how many of the weapons and magazines circulation? are weapons and magazines in Maryland Do merely Is States? United we the of all in or only, in count the for citizens possessed by law-abiding weapons magazines be and possessed for particularly any large-capacity and importantly, the unu decision raises various Those include: questions. How many weapons assault magazines must there be to consider and In resolving large-capacity that issue, should we On the issue of whether the banned assault weapons and large-capacity magazines are Second protected Amendment, by the the ELETE D OT PPLICATION TO TO PPLICATION N A O THE NEXT BIG GUN CASE concede weapons are Amendment. protected at all by the Second expressed its confusion with interpreting interpreting with confusion its expressed (D
2
. O N ET
M 102, 36 (emphasis omitted).
. OL V
at 135 at MULR
- .Id. ACTOR 239.2017). Cir. (4th 136 114, F.3d 849 Hogan, v. Kolbe 240 F M K IOCCHETTI IOCCHETTI C Y
2018] 2018] C 40986 mqt_102-2 Sheet No. 39 Side A 01/29/2019 13:38:24 01/29/2019 A Side 39 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 39 Side B 01/29/2019 13:38:24
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pons pons ban LCM
& 242
This is a no-no if if no-no a is This 243 244 (city assault weapons weapons assault (city 241 EAPONS W [102:309 [102:309 case was an appropriate vehicle vehicle appropriate an was case (Maryland assault wea (Connecticut assault weapons ban ban weapons assault (Connecticut
ned by Justice Scalia) dissented from the SSAULT SSAULT Kolbe A Only the Supreme Court can decide whether whether decide can Court Supreme the Only The ) 1/17/2019 Kolbe v. Hogan : Are the contours of a constitutional guarantee in guarantee constitutional a of contours the Are : : Has an appropriately postured case (one with a Yes! Yes! Friedman v. Highland Park Highland v. Friedman Shew v. Malloyv.Shew : : ELETE D
2016 / 2016 upheld at the upheld appellateat the court level) 2015 / 2015 ban upheld at the appellate court level) upheld at the upheld appellateat the court level) 2017 2017 / OT PPLICATION TO TO PPLICATION UESTION UESTION NSWER NSWER N
50. A O the Court takes a case and clarifies the scope of how assault how of scope the clarifiesand case a takes Court the arms.bear and keep to right theinto LCMs fit and weapons and large capacity magazines. The Court is also the only actor that can define the scope of proper assault weapons regulations. This issue will only grow more divisive until the the individual right to keep and bear arms protects a broadly broadly applicable fact pattern, clear standing, and no certiorari? A the mix and is the Court in the best position (perhaps the guidance? position) to add authoritative only A for a certiorari grant. There were no serious procedural bars procedural serious no were There grant. certiorari a for Q Finding Finding the issue unclear, the court broke with other Maryland the upheld and bans these enacted that states test. basis rational the under laws Q bear arms does include these types of weapons and magazines. magazines. the Supreme Court later rules that the right to keep and and keep to right the that rules later Court Supreme the serious serious procedural errors) made its way to a petition for that thethat en banc court had to clear up or sidestep around. MARQUETTE LAW REVIEW LAW MARQUETTE (D
2
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N ET
M 102,
. Seeid.
OL
V
MULR 136 S. Ct. 2486 (2016). (2016). 2486 Ct. S. 136 (2016). 469 Ct. S. 138
- SSAULT SSAULT .See id. .See . . ECENT ECENT A EAPONS EAPONS EFEREE ACTOR AMPLE OF OF AMPLE ARENA R S ERTIORARI ERTIORARI R 241 242. 136 S. Ct. 447, 447 (2015). Justice Thomas (joi 243 244 F
W DENIALS IN IN DENIALS C PPROPRIATENESS A THE THE A IOCCHETTI IOCCHETTI
378 378 C
denial of certiorari. 40986 mqt_102-2 Sheet No. 39 Side B 01/29/2019 13:38:24 01/29/2019 B Side 39 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 40 Side A 01/29/2019 13:38:24 . . . The The . IOLENCE V The case case The UN (Dec. 2017), 2017), (Dec. Kolbe since since this case G 247 ). IOLENCE REVENT REVENT V inside inside of the home P outside of the home UN TO TO . G TR 379 379 L. C REVENT REVENT P , a circuit split began to develop. develop. to began split circuit a , O IFFORDS There are pros and cons to public .T , G , 248 Kolbe TR L. C ) ) 1/17/2019 8:29 PM preservation preservation or efficiency of a well regulated ELETE (July 6, 2018, 9:26 PM), https://abcnews.go.com/US/caught- PM), 9:26 2018, 6, (July D IFFORDS OT EWS N , G N O THE NEXT BIG GUN CASE see alsosee Carry Open there will be time enough to expound upon the historical justifications justifications historical the upon to expound enough time be will there .2(D covered the regulation of handguns O , ABC and and Caught on Video: Restaurant Worker Cold-cocked, Suspect Then Driven Away Away Driven Then Suspect Cold-cocked, Worker Restaurant Video: on Caught s first in-depth examination of the Second Amendment, one should not expect it it expect not should one Amendment, Second the of examination in-depth first s . 102, N Heller OL The court stated that these weapons and magazines have a Duncan Becerra,v. 17-56081,No. 2018 U.S. App. 19690,LEXIS *7 (9th Cir. July 17, This is particularly true in situations where things happen too 245 at *5 (quoting United States v. Miller, 307 U.S. 174, 178 (1939)).178 174, U.S. States307 Miller, v. United (quoting *5 at Therefore, the Second Amendment and its protection for the the for protection its and Amendment Second the Therefore, 249 See Concealed Carry 246 - MULR V .See .See .Id. 249. Hadar, Roey 245 246 248. 247. District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (stating that Recall that M K IOCCHETTI IOCCHETTI C Y for the exceptions we have mentioned if and when those exceptions come before us. before come exceptions those when and if mentioned have we exceptions the for practice practice can potentially deter crime. For example, if someone tries to attack to likely is attacker would-be the weapon,a have you and place public a in you back off. carry carry of all types. Perhaps the largest benefit to possessing a gun away from they where places in themselves/others defend to people for ability the is home the that believe also carry public of Supporters actors. bad to exposed more are quickly for law enforcement to for quickly arrive law and enforcement help. On other the hand, opponents video-restaurant-worker-cold-cocked-suspect-driven/story?id=56418753 video-restaurant-worker-cold-cocked-suspect-driven/story?id=56418753 QRCT] [https://perma.cc/QSG5- (recounting the story off). back ofto attacker the caused which the weapon concealed attack and also the fact that another employee pulled out a LCM ban. individual individual right to keep and bear isarms in play. This opinion from the Ninth https://lawcenter.giffords.org/gun-laws/policy-areas/guns-in-public/concealed-carry/ [https://perma.cc/VQ2C-ERFT]; (Dec. [https://perma.cc/MYK9-WBFC]. 2017), http://lawcenter.giffords.org/gun-laws/policy-areas/guns-in-public/open-carry/ 2018] 2018] C by Co-worker With a Gun says says very little about the right to keep and bear firearms There are two types of this so-called public carry: concealed carry and casual the open to notis visible firearm carried a that means carry Concealed carry. observer while open carry means minimally that visible a to the casual carried observer. firearm must be at least 2018). to clarify the entire field entire the clarify to represents this Court this represents 3. Public Carry Regulations Regulations Carry 3.Public emerging circuit split is yet another factor that should demonstrate to the Court Court the to shoulddemonstrate that factor another yet is split circuit emerging case. weapons assault an to take time is it that The majority made clear that this was the only topic on the table. 40986 mqt_102-2 Sheet No. 40 Side A 01/29/2019 13:38:24 01/29/2019 A Side 40 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 40 Side B 01/29/2019 13:38:24 , M K 250 C Y CTION .A EGIS L FOR FOR . Open carry laws 257 NST I note 252 (showing that the the that (showing 252 note chigan, chigan, Minnesota, Montana, supra [102:309 [102:309 , NRA , is outside of the scope of the Second Shall Issue jurisdictions require a 252 Finally, May Issue jurisdictions make make jurisdictions Issue May Finally, 253 There are three types of laws regulating ). ). ) ) 1/17/2019 8:29 PM Ninestates are May Issuejurisdictions and, 251 256 ELETE note 248. 248. note D . § 134-9 (2016). (2016). . § 134-9 Iowa, Kentucky, Louisiana, Mi OT N TAT supra O MARQUETTE LAW REVIEW LAW MARQUETTE , [i]f [i]f the Supreme Court . . . meant its to holding extend beyond home .S .2(D EV O .R However, the firearm must be out of reach for immediate immediate for reach of out be must firearm the However, § 134-23 to -27. § 134-5. AW . 102, N id. id. H 255 , , , OL Williams v. State, 10 A.3d 1167, 1169, 1177 (Md. 2011) (holding that a statute (showing that these thirty-two states include: Alabama, Arkansas, Colorado, Florida, Florida, Colorado, Arkansas, Alabama, include: states thirty-two these that (showing Illinois, Indiana, There are generally exceptions for traveling with firearms for for firearms with traveling for exceptions generally are There and stating that that stating and 254 - MULR V .But see .But .SeeConcealed Carry .SeeConcealed .See, e.g. .See, .See id. id. .See .See Guide to the Interstate Transportation of Firearms of Transportation Interstate the to e.g. .See, Guide .See .See Guide to the Interstate Transportation of Firearms of Transportation Interstate the to Guide .See .See, e.g. .See, 251 250 254 253 255 252 256 257 Most Most states have legislated in favor of public carry, concealed particularly IOCCHETTI IOCCHETTI Amendment requiring requiring a permit tocarry a handgun outside the home use and in an enclosed container. enclosed an in and use possession, it will need to say so more plainly more so say to need will it possession, of those, eight severely restrict the ability to obtain a permit. a obtain to ability the restrict severely eight those, of hunting, gun repair, firearms range training, firearms shows, and to and from a a from to and shows, and firearms range training, firearms repair, gun hunting, firearms dealer. states which make it the most difficult to obtain a concealed carry permit include: California, Delaware, Delaware, California, include: permit carry concealed a obtain to difficult most the it make which states City), York New in rules stricter even (with York New Jersey, New Massachusetts, Maryland, Hawaii, Carrying Carrying of weapons also makes the unarmed segment of the population feel uncomfortable and less safe. Another negative is that a confrontation is more lethal to turn is likely when someone armed. itthat isFinally, likely criminals will be armed. victims their that believe they if firearms carry will Amendment Second the that held has appeals of court federal no date, To carry. does not extend beyond the home. it much more difficult to carry a firearm in public; permits are still required but but required still are permits public; in firearm a carry to difficult more much it property. 380 380 of the practice argue that, if improperly trained or weaker than an opponent, these weapons are more likely to be taken and used against a victim. C concealed concealed carry: (1) Unrestricted, Unrestricted jurisdictions do not require (2) a permit to conceal a Shall gun in public. Issue, Nine states are unrestricted jurisdictions. and (3) May Issue. permit permit to carry a firearm in jurisdictions. Issue Shall public. are Columbia Thirty-two states plus the District of Nebraska, Nebraska, Nevada, New Pennsylvania, Mexico, South North Carolina, Carolina, South Wyoming). and Wisconsin, Dakota, North Tennessee, Dakota, Texas, Ohio, Utah, Oklahoma, Virginia, Washington, Oregon, https://www.nraila.org/gun-laws/[https://perma.cc/Z74K-L6KV] (last visited Aug. 9, 2018) (showing Hampshire, New Missouri, Mississippi, Maine, Kansas, Arizona, Alaska, include: states nine these that Vermont, and West Virginia). Georgia, Idaho, 40986 mqt_102-2 Sheet No. 40 Side B 01/29/2019 13:38:24 01/29/2019 B Side 40 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 41 Side A 01/29/2019 13:38:24 ). Peruta II ). ). . The court . The court Peruta I 381 381 264 arms, and the bearing bearing the and arms, bear 259 ) ) 1/17/2019 8:29 PM The majority there held that Seeid. 742 F.3d 1144 (9th Cir. 2014) ( 2014) Cir. (9th 1144 F.3d 742 824 F.3d 919 (9th Cir. 2016) (en banc) ( banc) (en 2016) Cir. (9th 919 F.3d 824 265 ELETE D ego, ego, The decision was based on the fact that OT Peruta v. County of San Diego of v. County Peruta The court partially justified its decision The District Court upheld the regulation regulation the upheld Court District The N 263 note 248. 248. note § 26150 (2016). § 26150 262 O THE NEXT BIG GUN CASE This case answered the concealed carry 261 260 266 ODE .2(D supra C O , 52. 15. ENAL ENAL . 102, N .P OL at 1151 at at 1115. 1115. at 1114 at AL zoomed zoomed passed whether concealed carry of firearms is a practice protected by the Second Amendment and upheld the law under scrutiny test. the circuit-court-created intermediate in a case styled styled in a case Second Amendment does not preserve or protect a right of of right a protect or preserve not does Amendment Second firearms concealed carry to public general the of member a people have a right to keep and keep to right a have people in public. done is that an act is of arms for a concealed carry permit to show good cause beyond self-defense. of interests the because people were still allowed to defend themselves via via themselves defend to allowed still were people because open carry requirements. in California if they met the legal reversed reversed the panel. their their right to Amendment. self-defense protected by the Second District Court. C Peruta v. County of San Diego, 758 F. Supp. 2d 1106, 1113 (S.D. Cal. 2010). Cal. (S.D. 1113 1106, 2d Supp. F. 758 Diego, San of County v. Peruta at 924. 924. at 258 1. applicant an requiring law a passed California of state The 4. The Ninth Circuit then convened an en banc hearing and 2. A group of plaintiffs sued arguing that the law violates 3. A three-judge panel of the Ninth Circuit reversed the - MULR V .See id. .See .Id. .See id. .See id. .See .See .See .See .See Open Carry Open .See 264 265.Di San of County v. Peruta 266 260 261 262 263.Di San of County v. Peruta 259 258 The The Second Amendment plays a prominent role in lawsuits challenging M K IOCCHETTI IOCCHETTI C Y restrictions on the public carry of firearms. Fierce battles are playing out in the the in out playing are battles Fierce firearms. of carry public the on restrictions ping issue the where Circuit Ninth the in true particularly is This courts. circuit pongs from district courts, to appellate panels, to en banc hearings and then back for another round on a slightly different topic summary: a brief is Here opinions. that generates differing and Rhode Island). Connecticut is a May Issue state whose permitting restrictions are not as tough as as tough as not are restrictions permitting whose state Issue May a is Connecticut Island). Rhode and list. Issue May states the eight on other the 2018] 2018] are not quite as though regimented the practice is also allowed in the majority of states. C 40986 mqt_102-2 Sheet No. 41 Side A 01/29/2019 13:38:24 01/29/2019 A Side 41 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 41 Side B 01/29/2019 13:38:24 M K C Y granting granting The idea for for 271 269 270 [102:309 [102:309 the the legality of open Here, a district court court district a Here, 267 Peruta This was all dicta, of course, and legal legal and course, of dicta, all was This a permissible balance between between balance permissible a 272 ) ) 1/17/2019 8:29 PM appeal agreed that the Second Amendment Amendment Second the that agreed appeal 268 ELETE D OT N O MARQUETTE LAW REVIEW LAW MARQUETTE Peruta .2(D O Young v. Hawaii, 911 F. Supp. 2d 972 (D. Haw. 2012). Haw. (D. 972 2d Supp. F. 911 Hawaii, v. Young . 102, N , 824 F.3d at 942 (Graber, J., concurring). concurring). J., (Graber, 942 at F.3d 824 , OL at989. at *66 (Clifton, J., dissenting). dissenting). J., (Clifton, *66 at carr outside the home right. Amendment is not part of the core Second carry carry restrictions when they are the only means of self- defense with a firearm in public. question, question, at least in the Ninth Circuit, required then Amendment but Second the whether of question left open the that open carry then be allowed. In other words, does the Constitution require that some form of lawful? public carry be on the question left open in a protect does Amendment Second the worse, for or better self- for in public a firearm carry to right (majority opinion). (majority See generally See 5. In 2012, a federal District Court in Hawaii decided a case 6. On July 24, 2018, a divided panel of Ninth Circuit judges - MULR V .See id. id. .See id. .See .Peruta II .Peruta .Id. 267. 268 269. Young v. Hawaii, No. 2018 12-17808, U.S. App. 20525, LEXIS at *64 (9th Cir. 24, July 270 271 272 It It will be interesting to see whether the game of Second Amendment ping IOCCHETTI IOCCHETTI handgun handgun permits to those persons known to be in need of self-protection and a precluding dangerous proliferation of handguns on the streets. pong pong will continue and whether the Ninth Circuit will take this case en banc and reverse. Looking back, it appears that at least seven of the eleven judges who heard the en banc allows for restrictions on any public carry of firearms. 382 382 C case. Second Amendment a controversial to decide again concurrence, concurrence, which was joined by two other judges 2018). 2018). being that the Second Amendment may well require some form of public carry carry public of form some wellrequire may Amendment Second the that being to threat legitimate a articulate can who people to right that limit may states but their person or property. Four judges in the majority in this case seemed agree stating, to 40986 mqt_102-2 Sheet No. 41 Side B 01/29/2019 13:38:24 01/29/2019 B Side 41 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 42 Side A 01/29/2019 13:38:24
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RENA Fourth, A 277 ARRY ARRY C -reasonlaw Third, The majority of the 276 274 UBLIC 383 383 P Considering the different standards standards different the Considering : Are government officials hindered in Yes! ) 1/17/2019 : 824 F.3d 919, 927 (9th Cir. 2016) (en banc). banc). (en 2016) Cir. (9th 927 919, F.3d 824 (b)(2018). ELETE PPLICATION TO TO THE PPLICATION D ego, A OT This issue is not going away as evidenced by the UESTION NSWER N O THE NEXT BIG GUN CASE Q authority? their on boundaries constitutional A executing executing their job duties because of unclear 280 (D
2
gher, 712 F.3d 865, 876 (4th Cir.2013). .
O § 22-4506(a) N ET
violates the Second Amendment. Second the violates M 275 273 ODE 102,
. OL V
Circuits who have written that the Second Amendment may not
Wrenn v. District of Columbia, 864 F.3d 650, 667 (D.C. Cir. 2017). D.C. C
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carrying carrying in urban areas like D.C. or bans on carrying absent a special need for self-defense. generally. arms common carry is necessarily a total ban on exercises of right that for constitutional most D.C. residents. law . . . . We pause to draw together all the pieces of our analysis: At the the At analysis: our of pieces the all together draw to pause We to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions. These traditional limits include, for instance, licensing requirements, but not bans on - .See .See .Id. .2012). (2d Cir. 81, 89 F.3d 701 Westchester, of County v. Kachalsky .2011). Cir. (4th 470 458, F.3d 638 Masciandaro, States v. United .See .See ACTOR FFICIALS F 274 275 277. 2013). Cir. (3d 431 426, F.3d 724 Filko, v. Drake 278.Galla v. Woollard 279.Di San of County v. Peruta 273 276 280 AMSTRUNG
Though the HEAR framework does not require a circuit split, one exists on on exists one split, circuit a require not does framework HEAR the Though On the other side of the circuit split are the Second, O M K H IOCCHETTI IOCCHETTI C Y Hawaii case filed in late 2018. This legal drama clearly illustrates why the issue issue the why illustrates clearly drama legal This 2018. late in filed case Hawaii of public carry passes the four factors of the HEAR thoroughly: more case the just to make But, colors. framework with flying interests in interests self- even even extend the right to keep and bear arms outside of the home. The idea is that, as been more limited, because public safety interests often outweigh individual this this issue. is that requirement cause good a (including carry public on ban restrictive very difficult to meet) and Ninth
2018] 2018] C divided panel refused to apply any level of means/ends scrutiny and held: scrutiny of means/ends level any to apply refused panel divided 40986 mqt_102-2 Sheet No. 42 Side A 01/29/2019 13:38:24 01/29/2019 A Side 42 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 42 Side B 01/29/2019 13:38:24 M K PM
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281 [102:309 [102:309 only only applied to use firearms and do not undercut the the undercut not do and case from Hawaii remarked: Hawaii remarked: from case Heller Heller The dissent in the appellate panel panel appellate the in dissent The Heller case from the Ninth Circuit where an en Young differently.This confusion isalso shown Yes! : Does confusion by judges reverberate ) 1/17/2019 : [T]he [T]he disregarded the fact majority that states and territories in a opinion have variety of long regions allowed on the of regulations limitations and has for have Many firearms. of extensive carry public taken the approach that Hawaii has taken for almost a lawful presumptively are century. regulations Such under core of the Second Amendment. In addition, the misconceives majority scrutiny the opinion test, suppo assumes intermediatestatute operates as a complete without ban, and substitutes its about the efficacy own of less restrictive judgment regulatory schemes. This approach is in conflict with precedent, Supreme our Court own decisions, circuits. other by decisions and Peruta ELETE Heller D OT UESTION NSWER N O Obviously, Obviously, the majority on the Ninth Circuit panel read hearing the hearing Q and interpretations across the nation on the issue of public carry, legislators are left constitutional to ban in public carry limbo. altogether? This would Is mean that it throughout throughout the circuit courts of appeals to the point where legal tests are case Court law? in Supreme dicta or rulings opaque created that tiptoe A around and bear arms? Possessing the answers to these in the home. Or, must lawmakers leave at least one means of firearms possession and use available for licensing Do public? in themselves defend to people cause good require that carry public for requirements keep to right the violate self-defense for need the past in the in questions questions would surely free lawmakers to do their and effectively. efficiently jobs more MARQUETTE LAW REVIEW LAW MARQUETTE (D
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O N
102,
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- CHOES OF OF CHOES ONFUSION 281. Young v. Hawaii, No. 2018 12-17808, U.S. App. 20525, LEXIS at *85 (9th Cir. 24, July E C IOCCHETTI IOCCHETTI
384 384 C 2018) (Clifton, J., dissenting). dissenting). J., (Clifton, 2018) 40986 mqt_102-2 Sheet No. 42 Side B 01/29/2019 13:38:24 01/29/2019 B Side 42 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 43 Side A 01/29/2019 13:38:24 PM
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! 283
282 OMING C (California concealed (California concealed S
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case was a good vehicle vehicle good a was case 385 385 ASE ASE C . ned by Justice Gorsuch) dissented from Peruta UN reversed reversed a district court decision G Heller IG IG As with the assault weapons cases, cases, weapons assault the with As The B : Has an appropriately postured case (one : Are the contours of a constitutional Yes! Yes! Yes! EXT Norman v. Florida Peruta Peruta v. California ) 1/17/2019
: : N ELETE HE 2000. D T
2017 / 2017 / the circumstances in which a person may openly carry law upheld by an en banc court) banc an en by law upheld carry carry a firearm in public upheld) a firearm carry OT : UESTION NSWER UESTION NSWER N
O THE NEXT BIG GUN CASE the Second Amendment is squarely in play and the call. the final to make Court has Q banc panel was forced to reverse an appellate panel which had recently Q guarantee guarantee in the mix and is the position Court in the best (perhaps guidance? authoritative the only A position) to add with a broadly applicable fact pattern, clear standing, standing, clear pattern, fact applicable broadly a with certiorari? petition for A on public carry. carry. on public and no serious procedural errors) made its way to a to trip up the Justices. Justices. up the to trip to tackle this issue with few major procedural issues 1996
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See id. id. See 102,
. ONCLUSIONS
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A UBLIC UBLIC - P ECENT ECENT EFEREE AMPLE OF OF AMPLE ENIALS IN IN ENIALS R S R ERTIORARI 282. (2017). 469 Ct. S. 138 283. 137 (joi S. Ct. Thomas Justice 1995, 1996 (2017). This Article is not designed to guilt the Justices into hearing another Second Second another hearing into Justices the guilt to designed not is Article This These are just two of the subjects in the firearms regulation realm which
M K D ARRY THE THE C PPROPRIATENESS A C A IOCCHETTI IOCCHETTI C Y the denial of certiorari. certiorari. of denial the Amendment Amendment case. They already know purpose is they to should. provide a framework for Rather, the the Court consider primary and the anytime public at a large to controversial framework concisely petition synthesizes the key components of what comes makes a tough knocking. The HEAR call out for clarity. There are other important areas, to be sure, such as whether whether as such sure, be to areas, important other are There clarity. for out call universal and whether own their of rights Amendment Second have businesses background checks are constitutional. Hopefully, the Court will pick at least to clarify begin and list this from one case
2018] 2018] C 40986 mqt_102-2 Sheet No. 43 Side A 01/29/2019 13:38:24 01/29/2019 A Side 43 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 43 Side B 01/29/2019 13:38:24 M K C Y [102:309 [102:309 ) ) 1/17/2019 8:29 PM The factors identify legal disputes where the the where disputes legal identify factors The ELETE D OT N O MARQUETTE LAW REVIEW LAW MARQUETTE .2(D O . 102, N OL - MULR V Finally, Finally, imagine a world when the Court Supreme acts decisively in cases tough in deciding Court Roberts the of courage the illustrated Article This Imagine next a judicial branch where lower court judges were not confused confused not were judges court lower where branch judicial a next Imagine Instead, imagine a world where lawmakers clearly understand the IOCCHETTI IOCCHETTI requirement or the propriety of state grants awarded to houses of worship comes comes worship of houses to awarded grants state of propriety the or requirement to the Court, the Justices tend to at offer least some clarity and guidance. The must soon same theAmendment. be said about Second to within Free operate clear constitutional boundaries, officials will stand a much better chance violence. gun against battle the winnable in prevailing of such a state would improve public confidence the of surrounding adjudication laws. gun controversial Court the that mean not does This authority. ultimate the are Justices the where should Justices the that mean it does Neither law. make and legislature a mimic when that however, mean, does It statutes. dumb even or written poorly correct the contours of a constitutional right are guidance. at issue, the Court provide clear constitutional cases. Though the results of popular, they these are critically important. decisions The public can rest are assured that, when not warrant always Amendment Fourth the of limits the with deals that case appropriate an would be struck down by the Supreme Court as non-compliant with the right to to right the with non-compliant as Court Supreme the by down struck be would keep and bear arms. Lawmakers would no longer be hamstrung by a decade- an such field. that clarify argues entire old This case to Article never intended firearms. around policy public improve would a state as to the basic test required the out come would cases all that to mean not does This guarantee. constitutional adjudicate cases alleging the violation of a same. Judges, however, would be able to apply their sensible discernment to the nuances of various firearms laws without having to create their own legal framework. In this world, fewer circuit splits and awkward en banc reversals would result. Echoes of that argues confusion Article This Amendment. would Second the to no comes it when courthouses longer fill the halls of lower 386 386 Cou public policy. This is the most obvious today officials spin in their wheels the seeking answers firearms that the realm Court could where provide with of a pen. the stroke constitutional boundaries on their authority and ability to regulate Think of firearms. this as a roadmap to reversal-proof policy. This does not mean that every policy choice would be effective or popular, but only that fewer laws C 40986 mqt_102-2 Sheet No. 43 Side B 01/29/2019 13:38:24 01/29/2019 B Side 43 No. Sheet mqt_102-2 40986