Shouldn't Pro-2nd Amendment groups hold off on petitioning SCOTUS until it's more favorable?

[Aim1]

Apparently from what was learned in the earlier thread once you petition a case to the US Supreme Court and get denied you cannot re-file at a later date. We only have so many good cases and they only come every so often and they take years to get to SCOTUS. Currently we have a make up on the court that makes it questionable whether we could get a positive or negative ruling from the court on a 2nd Amendment case however the bigger problem is that we have a court that is straight up refusing to take any 2nd Amendment cases at all, thus the make up of the court doesn't even matter if the court won't hear the case.

Are we wasting good cases by sending them up to SCOTUS only to have them deny cert? SCOTUS hasn't taken a major 2nd Amendment case in years and is showing no signs that it wants to.

I don't know how long you have after a case is ruled on in the other courts before you petition it to the US Supreme Court but if you only have a certain amount of time that maybe why 2nd Amendment advocates are sending cases to SCOTUS even if they have almost no chance of being granted cert.


Shouldn't Pro-2nd Amendment groups hold off on petitioning SCOTUS with 2nd Amendment cases until the court is more favorable in actually granting cert on a case?

 

[jrmiddleton425]

Shouldn't Pro-2nd Amendment groups hold off on petitioning SCOTUS with 2nd Amendment cases until the court is more favorable in actually granting cert on a case?

NYSRPA vs. Cuomo was not appealed to SCOTUS for that very reason.

In Heller, SCOTUS pretty much laid the framework to take a case if, and only if, the law in question bans an entire class of firearms. The very reason SCOTUS heard Heller is that Heller, by reason of his employment as a U.S. Capitol police officer, SHOULD have been allowed, under then-existing D.C. statutes, to register his handgun.

His application was denied, thus forcing the District to admit that there had been no handguns registered there since 1976, even to serving police officers. This was a de facto ban, which was overturned.

Contrast that with the two cases just denied certiorari.

In Norman v. Florida, a man was cited for open carry because he was wearing a shirt that exposed his handgun. Florida issues concealed-carry licenses, so it's certainly possible to comply with the concealed-carry requirement. For whatever reason, Dale Norman was deemed to be violating the law, and cited for the same.

Kolbe v. Hogan concerned the Maryland definition of an "assault weapon." It's easy to make a compliant AR-15. I don't like that some states require it, but realistically, compliance is a matter of swapping stocks and installing a non-threaded upper. Inconvenient, but again, certainly possible.

Ergo, if your case is based on "I don't want to comply with the law," you have no case.

 

[Sam1911]

I don't always defer to the wisdom of those in positions of influence, but I do rather have to believe that SAF, at least puts a great deal of thought into the strategy of how and when to bring a case to court. Of course, there's a lot more to it than a simple decision to do so.

If nothing else, a case has to actually exist where someone is in trouble with the law or has standing to bring suit, and that case has to be the right sort of case and the person involved has to be the right sort of complaintant in order to build a federal level case upon. It's not like they can invent a Dick Heller whenever the time feels just right to bring an issue before the SCOTUS.

 

[jdc1244]

As long as Federal courts of appeal are in agreement with regard to Second Amendment jurisprudence, the Supreme Court will continue to refuse to hear Second Amendment cases.

The justices are likely satisfied with allowing the lower courts to continue to determine what firearm regulatory measures are Constitution and what measures are not – agreeing to review a case only when the appellate courts are in disagreement.

 

[AlexanderA]

Judicially-conservative Justices (who apparently are the kind "our side" wants) tend to put a lot of stock in stare decisis (the rule of precedent). This worries me, because the leading precedent on 2nd Amendment issues is the Heller case. If Heller is followed, we can say goodbye to so-called "assault weapons" as well as unrestricted carry outside the home. Scalia's vision of the 2nd Amendment was a very restrictive one, something that was not immediately recognized when the Heller decision was handed down. RKBA advocates were overjoyed that an absolute prohibition was struck down. They should have analyzed Scalia's reasoning in more detail. (Remember that Gorsuch was a protege of Scalia's, and can be expected to give undue weight to Scalia's writings.)

The McDonald case is also worrisome in that the "incorporation" of the 2nd Amendment so as to apply to the states under the 14th Amendment was based on "substantive due process" rather than the "privileges and immunities" clause. Justice Thomas (in his concurring opinion) is the only one who would have relied on the "privileges and immunities" clause. This is an important difference.