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August 23, 2018

As Judge Kavanaugh Confirmation Hearings Near, Potential Gun-Related Cases That Could Reach the Supreme Court

By Larry Keane

Just after Labor Day, the U.S. Senate Judiciary Committee is going to turn to the serious work of confirmation hearings for Judge Brett Kavanaugh. The timing is crucial. The hearings are expected to last no more than four days. There will likely be a pause between the end of the hearings and when Senate Judiciary Chairman Chuck Grassley (R-Iowa) will presumably send the confirmation to the full Senate.

Senate Majority Leader Mitch McConnell (R-Ky.) will set a date for a floor vote when, one-by-one, senators will file down to the Senate well and cast their votes. It is expected to be close, but the goal is to have a new Associate Justice sworn and seated when the Supreme Court gavels in for its next session Oct. 1.

The vote couldn’t be more crucial for America’s gun owners, those defending Second Amendment rights and the firearms industry. The U.S. Supreme Court hasn’t taken a firearms-related case in eight years. Justices Clarence Thomas and Neil Gorsuch criticized their fellow justices for refusing to hear Peruta v. California.

“The Court’s decision… reflects a distressing trend: the treatment of the Second Amendment as a disfavored right,” they wrote.

With a number of important appellate decisions potentially working their way up to the high court, nowhere is the tension felt more than in California, one of the largest U.S. markets for firearms and ammunition manufacturers, but also home to some of the most restrictive anti-gun laws in the country.

The U.S. Court of Appeals for the Ninth Circuit, the most often reversed circuit court that covers California and other Western States, has decided a number of closely-watched cases in recent months which raise issues of profound importance to Second Amendment advocates, including:

Virginia Duncan v. Xavier Becerra

This case involves a challenge to a California law which makes it illegal to even possess so-called “large capacity magazines” (those which can hold over 10 rounds) regardless of when they were acquired. In a surprising, but welcomed, decision the Ninth Circuit upheld the district court’s decision to issue a preliminary injunction, based on both Second Amendment grounds and the constitutional prohibition on governmental takings without just compensation, preventing enforcement of Penal Code § 32310 pending further review by the district court.

Jordan Gallinger, et al. v. Xavier Becerra

This case involves a challenge by concealed weapons permit holders to a 2015 amendment to California’s Gun-Free School Zone Act which barred them from carrying a firearm on school grounds or within 1,000 feet of a school. While both retired peace officers and concealed carry permit holders were initially included in the ban, the California legislature later exempted retired peace officers from its scope but not CCW holders. Earlier this year, the Ninth Circuit upheld the district court’s dismissal of the case thereby ending the CCW holders’ legal challenge. Ultimately the Supreme Court is likely to be asked to decide this case.

Ivan Pena, et al: v. Stephen Lindley

This case challenges key provisions of California’s so-called “Unsafe Handgun Act,” the anti-gun law that requires all new models of pistols include a loaded chamber indicator, magazine disconnect device and microstamping in order to be included on the State’s rapidly shrinking handgun roster and approved for sale in the state. The Ninth Circuit recently rejected the plaintiffs’ Second Amendment challenge ruling that there was a “reasonable fit” between the Act’s provisions and the state’s public safety interest even though it is literally impossible to microstamp a pistol in compliance with California’s law. Judge Jay Bybee dissented in part and would have sent the case back to the district court for further review of the effect of the microstamping requirement. Judge Bybee citing extensively to my declaration in the case addressing the microstamping issue.

George Young, Jr., et al. v. State of Hawaii et al.

This case involves an action by a Hawaii resident alleging that the denial of his handgun permit application, based on the County of Hawaii’s restrictive concealed carry and open carry regulations, violated his Second Amendment right to carry a loaded firearm in public for self-defense. Though the district court dismissed Young’s suit, perhaps the most conservative three-judge panel on the Ninth Circuit reversed and held that the core of the Second Amendment includes the right to carry a firearm openly in public for self-defense. The State of Hawaii is already taking steps to ask that this favorable Second Amendment ruling be overturned by an en banc, or full, panel of Ninth Circuit court judges.

Flanagan v. Becerra

The challenge was filed in August 2016 in response to the Ninth Circuit’s en-banc decision in Peruta v. California, and seeks to force the court to decide whether California’s entire regulatory scheme prohibiting both open and concealed carry violates the Second Amendment. In May 2018, the trial judge granted the State’s motion for summary judgment. Plaintiffs appealed the case to the Ninth Circuit. Given the Ninth Circuit’s recent ruling in Young v. Hawaii, counsel is considering options to expedite the appeal.

Though the Ninth Circuit Court of Appeals has issued many of the most recent anti-gun decisions which could end up before the high court, there are other important Second Amendment issues percolating in other courts.

One such case is Fredric Mance, Jr. v. Jefferson B. Sessions

This case out of the U.S. Court of Appeals for the Fifth Circuit involves a challenge to those federal laws which prohibit the direct sale of a handgun by a federally licensed firearms dealer (FFL) to a person who is not a resident of the state in which the selling FFL is located. Mance, an FFL holder in Texas sought to sell two handguns directly to residents of the District of Columbia. Though the handguns could have been shipped from Texas to D.C. to complete the transaction, it would have resulted in steep transfer and shipping fees. A federal district judge in Texas enjoined enforcement of the regulations on both Second Amendment grounds and on grounds they violated the Due Process Clause of the Fifth Amendment, but the Fifth Circuit reversed finding the Gun Control Act’s in-state handgun sale requirement remained justified by a compelling government interest and that the in-state sales requirement did not discriminate based on residency, so it was not subject to any scrutiny — strict or otherwise — under the equal protection component of the Due Process Clause.

Worman, et. al, v. Baker:

This case in the U.S. Court of Appeals for the First Circuit challenges on Second Amendment grounds Massachusetts’ so-called “assault weapon ban” and the Massachusetts Attorney General’s pronouncement greatly expanding the statutory ban to include nearly all semiautomatic firearms and magazines over 10 rounds. The suit also challenges the state’s prohibition on so-called “large capacity magazines,” a challenge to the Attorney General’s Notice of Enforcement as an unconstitutional retroactive law, and a challenge to the “assault weapon” prohibition under the void-for-vagueness doctrine.

Worman was filed in January, 2017 and assigned to Judge William G. Young. After discovery, on cross-motions for summary judgment, Judge Young granted the state’s summary judgment on the Second Amendment and vagueness claims, and dismissed the retroactivity claim as unripe. The Court held that the firearms and magazines banned by Massachusetts are outside the protection of the Second Amendment, largely following the Fourth Circuit’s Kolbe decision. The Court held that commonality is not a relevant issue in a Second Amendment analysis, and that the proper test for whether a firearm is protected is whether it is “most useful in military service.”

Plaintiffs will file their briefs in the First Circuit Court of Appeals by Oct. 5, 2018. Oral argument is expected to take place in December with a decision to follow in the first quarter of 2019.

Gould v. Morgan (formerly O’Leary)

This suit challenges the Massachusetts restrictions on carrying firearms in public, and it is also pending in the First Circuit Court of Appeals. Massachusetts requires a license to carry firearms in public, which may be granted only upon demonstration of a “good reason,” and it delegates to local licensing authorities the power to require the showing of a heightened need for self-defense before a license to carry will issue. The parties filed cross-motions for summary judgment in 2017. District Judge Saylor granted summary judgment to the defendants in December of that yea, and the plaintiffs are now pursuing their appeal in the First Circuit.

This list is hardly comprehensive, but it makes crystal clear what is at stake in the coming months – those who cherish the Second Amendment have good reason to want Judge Kavanaugh confirmed at the earliest possible opportunity.

 You may also be interested in: NSSF Visits with Former U.S. Sen. Kelly Ayotte on Judge Kavanaugh Confirmation

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