Now that the Supreme Court appears to have filled out its oral argument docket for the 2025-26 term (unless it opts to fast-track a case), it seems an apt time to survey the Second Amendment landscape and highlight some of the biggest issues that the justices have not yet tackled. As a reminder, the current era of Second Amendment jurisprudence is relatively new in the world of Supreme Court case law. Indeed, it was less than 20 years ago that the court decided District of Columbia v. Heller, holding that the Second Amendment protects an individual right to possess a firearm for self-defense. Fast forward to 2022, when the court brought about another sea change with its decision in New York State Rifle & Pistol Association Inc. v. Bruen and established (or at least formalized) a new test for Second Amendment cases: text, history, and tradition. Specifically, under the Bruen framework, courts must first ask whether the “plain text” of the Second Amendment is implicated by the challenged firearm conduct; if so, the government must then show that the law restricting gun rights aligns with this country’s “historical tradition of firearm regulation.” Until now, the only other Second Amendment case decided since Bruen was United States v. Rahimi, in which an eight-justice majority upheld a federal statute that temporarily disarms anyone subject to a domestic-violence restraining order. While Rahimi gave some guidance on how to undertake Bruen’s historical analysis, lower courts nevertheless continue to struggle and split on several gun-related matters. Which brings us back to the present. This term, we will get two Second Amendment decisions from the court. In Wolford v. Lopez, the justices are considering whether a Hawaii law that presumptively prohibits carrying handguns on private property open to the public unless the property owner has affirmatively consented violates the Second Amendment. And in early March, the court will hear oral argument in United States v. Hemani, on the constitutionality of a federal law that prohibits firearm possession by individuals who are “unlawful user[s] of or addicted to any controlled substance.” These cases may provide some much-needed guidance for litigants and lower courts on how to apply the “history and tradition” framework to Second Amendment challenges. But they leave many significant issues concerning gun rights on the table. Below are some of them. Semiautomatic rifles The status of semiautomatic rifles (like the AR-15) is probably the most prominent issue concerning the Second Amendment yet to be decided. As Pete Patterson recently explained to Haley Proctor on SCOTUSblog, the Supreme Court said in Heller that the Second Amendment protects arms that are in “common use” for lawful purposes, but not “dangerous and unusual weapons.” Semiautomatic rifles demonstrate, at least in the view of some courts, the conflict that arises from this formulation. The AR-15 is said to be the most popular firearm in the United States and therefore is arguably in “common use.” On the other hand, courts upholding bans of these firearms have pointed to the AR-15’s firepower and accuracy to conclude that it is more appropriate for military combat than civilian self-defense and therefore qualifies as the type of “dangerous” weapon banned at the time of the founding. Last June, the justices denied a petition for review challenging Maryland’s ban on semiautomatic rifles. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch all indicated that they would have taken up the case. Although Justice Brett Kavanaugh did not vote to grant review, he wrote a short statement respecting the denial. Kavanaugh explained that he was doubtful that the U.S. Court of Appeals for the 4th Circuit was correct in upholding Maryland’s ban on such weapons. But because other circuit courts were in the process of deciding similar cases, he wrote, the time was not yet ripe for the Supreme Court to get involved. Nonetheless, Kavanaugh concluded by stating that the court “should and presumably will” address the issue of AR-15s shortly, “in the next Term or two.” Perhaps we will see this prediction come to fruition soon: the court is currently considering whether to grant two pending petitions – Viramontes v. Cook County and National Association for Gun Rights v. Lamont – on this question. Large-capacity magazines Although the laws vary slightly, a number of states have enacted bans on what are commonly referred to as large-capacity magazines. Typically, this category includes any magazine that holds more than 10 rounds of ammunition. A handful of federal courts of appeals and state supreme courts have held that large-capacity magazines are not “Arms” within the meaning of the plain text of the Second Amendment. This means that these cases have been tossed out at step one of the Bruen inquiry, before the burden shifts to the government to demonstrate a historical tradition (or a “historical analogue”) of banning such items. Other courts have found (or assumed) that large-capacity magazines are “Arms,” but ultimately concluded that the challenged regulations were constitutional because there was a sufficient historical tradition justifying bans on them. Currently, there are at least two petitions on this question pending before the court, which have been relisted at several conferences. For example, Duncan v. Bonta has been considered by the justices at the last five of these. Given this, it seems only a matter of time before this issue is considered by the court. Possession of guns by people convicted of felonies Another federal law, commonly known as the “felon in possession” statute, effectively makes it illegal for anyone convicted of any crime that is punishable by more than one year in prison to possess a firearm or ammunition. Many individuals have brought challenges to this statute (and similar state statutes), arguing that it is unconstitutional to disarm them on the basis of past felony convictions when the underlying felony was nonviolent – such as in the sale of controlled substances or for fraud. While these challenges are prolific, they have also been relatively unsuccessful. Of the nine federal circuits that have decided a case on this issue, only the U.S. Court of Appeals for the 3rd Circuit has held the statute unconstitutional in any respect. In Garland v. Range, that court held it was unconstitutional to permanently disarm Bryan Range for a decades-old conviction for food-stamp fraud. In addition, the U.S. Courts of Appeals for the 5th and 6th Circuits have indicated a willingness to consider individual challenges to this statute based on the type of crime, although six other circuits that have weighed in have seemingly decided that individuals convicted of felonies have no recourse at all, regardless of what their underlying convictions may be. Just last month, the justices denied a large number of petitions on this issue. The court did not act, however, on two cases presenting this question – including a petition for review filed by Melynda Vincent, who is banned from owning a firearm because of her nearly two-decades-old conviction for attempting to pass a bad check. Although Vincent’s case lived to see another day, it seems unlikely that the court will grant it in light of the other denials. Sensitive places In Heller, the court emphasized that nothing in its opinion was meant to call into question (among other things) restrictions on firearms in “sensitive places such as schools and government buildings.” But what about anywhere else? Many states and municipalities have regulations restricting the carrying of firearms in a variety of locations, including places of worship, parks and zoos, public transportation, and places where alcohol is consumed. These cases thus highlight two interrelated questions: what, exactly, qualifies as “sensitive,” and why? The justices may provide answers if they choose to take up a case like Schoenthal v. Raoul, which is a petition currently pending before the court. Specifically, Schoenthal is a challenge to an Illinois law that bans possession of firearms on public transportation. According to the gun owners who brought the lawsuit, history demonstrates that individuals retain their Second Amendment right of self-defense in public spaces unless the government decides to bear the burden of securing them (typically by supplying things like armed guards and metal detectors) – therefore, only places where the government has assumed such a burden may be deemed “sensitive.”   Of note: Wolford also included a challenge to Hawaii’s sensitive place restrictions, but the Supreme Court did not agree to hear or decide that aspect of the case. It is therefore unlikely that we will get much in the way of clarity on this issue in the Wolford decision, and it will then remain ripe for resolution in a future case. Minors Multiple federal and state laws prohibit individuals under the age of 21 from purchasing or possessing firearms. After Bruen, there have been numerous challenges to these restrictions as they apply to 18-to-20-year-old adults. Prior Supreme Court decisions, such as 1968’s Ginsberg v. New York, have indicated (though not without criticism) that “minors” may have less expansive constitutional rights. Nonetheless, a good deal of these cases seem to assume that minors are younger than 18, and that once an individual turns 18, they are an adult who enjoys robust constitutional rights, which may include the Second Amendment. Another wrinkle comes from the historical presence (or absence) of such laws, which, as we’ve established, is quite important since the court’s decision in Bruen. Lower courts have split on this issue, whether in considering the age of maturity at the founding or the nature of 18th-century regulations of university students. There are currently at least two relevant petitions pending at the court, including Paris v. Second Amendment Foundation, in which the government argues that laws setting a minimum age of 21 for gun rights are consistent with history from the time of the founding through the 19th century. That said, the justices have not considered either case at a conference since November, so it does not appear that the justices are looking to decide this issue anytime soon. What counts as history? This final category is a bit more abstract than the others, centered not on a particular type of regulation but instead on the legal framework concerning them. In Wolford, the petition included two questions presented. In addition to the question the justices agreed to hear (regarding firearms on private property), the challengers also argued that the U.S. Court of Appeals for the 9th Circuit erred by relying on historical evidence from the Reconstruction era and later – rather than relying only on the historical evidence available at the time of the Second Amendment’s ratification.   The justices have acknowledged that the question of the time period on which judges should rely when conducting historical inquiries is unresolved, but they have so far declined to offer any insight of their own. In Rahimi, for example, the majority opinion explicitly referenced this ongoing issue but deemed it “unnecessary” to decide in that case. This matter, which has not only split courts but originalists in general, is likely to land on the court’s docket again in the near future. So what now? Overall, there appear to be more questions than answers when it comes to the Second Amendment. While some observers have called this area a “mess,” others suggest this is just part of the “normal science” of constitutional law. Regardless of which view is correct, it remains an area in serious need of some guidance from the court. The post The Second Amendment landscape appeared first on SCOTUSblog.

ScotusCrim is a recurring series by Rory Little focusing on intersections between the Supreme Court and criminal law. Imagine: A group of drug dealers beat and shoot dead a citizen they felt was interfering with their work. There are witnesses as well as video evidence establishing these facts and enabling identifications. The gang is in constant electronic communication with their bosses who are miles away in a plush office. With the bosses’ knowledge and approval, the drug dealers do a hurried clean-up of the scene and spirit away the shooters and physical evidence before law enforcement can investigate. Facts can always be distinguished. But if a gang of drug dealers acted as imagined above, I have no doubt they would be arrested and charged with crimes, including their bosses if they could be identified. The internet is awash with speculation about possible state criminal charges arising out of the killing of Alex Pretti, and a number of serious state crimes seem apparent in videos that show facts better than any written description. Yet I have not seen obstruction of justice crimes explored for the Department of Homeland higher-ups who may have aided, counseled, and commanded various actions related to the shooting. Is there a theory by which a federal crime might be charged? Although the prospect seems unlikely at the moment, what do relevant statutes and the Supreme Court have to say about potential federal charges for DHS decisionmakers? First, what happened to the Pretti crime scene, shooters, and evidence? There has been great unusual secrecy on the part of DHS about the actors and evidence in the Pretti killing, and there is much we do not know. Three days after the killing, the two federal Border Patrol officers (a component of DHS) who shot Pretti were identified to Congress. But we do not know where they are. News accounts indicate that they left the scene quickly, in the company of other federal officers. In the absence of additional information, my former-federal prosecutor instincts say that the officers were quickly moved out of Minnesota. I doubt this was done without DHS management approval or orders. Similarly, as far as we know, the weapons used or recovered at the scene (and perhaps shell casings, bullets, etc.?) were apparently taken from the scene by DHS personnel. There is no evidence that the federal agents secured the crime scene (say with yellow tape, physical barriers, or personnel) to avoid evidence spoilation or tampering, and a federal judge has said that some evidence was probably damaged or lost in the initial hours. After agents left the scene, Minnesota obtained a court order that merely (and temporarily) directed DHS not to destroy whatever evidence it has. Pro Publica reports that Customs and Border Patrol “has disclosed few other facts.” Minneapolis city officials have said “[w]e don’t have any information on the shooters,” and the Minneapolis district attorney for Hennepin County, Mary Moriarty, stated that the Minnesota Bureau of Criminal Apprehension (a state equivalent to the FBI) “has been blocked” from getting evidence from relevant federal officials. Finally, the DOJ announced approximately a week after the killing only that it has opened “a civil rights investigation” into the incident. Democratic members of Congress have officially complained that DHS has “actively obstructed any investigation.” Does the conduct amount to obstruction of justice? Obstruction of justice is statutorily defined in many different ways across a multitude of jurisdictions. The court has rejected the idea of an easy or general “coverall” obstruction of justice concept. Meanwhile, facts in the real world often escape easy definition or application. So I’m going to assume here the reader’s familiarity with the general concept. As the Supreme Court explained in the 1980 case of United States v. Apfelbaum, “[i]n the criminal law, both a culpable mens rea [guilty mind] and a criminal actus reus [guilty act] are generally required for an offense to occur.” (In addition, the court has noted that there are often special “jurisdictional elements” for federal crimes, as I discuss more below.) If a gang of drug dealers acted as imagined above, I believe their conduct could easily meet the actus reas (conduct component) of obstruction of justice, having quickly spirited away the shooters and physical evidence before the police could investigate. Concealing evidence in various circumstances, as well as destroying or tampering with it, can itself be federal criminal conduct. As can witness tampering (for example in 18 U.S.C. 1512), which can include, as the U.S. Court of Appeals for the 9th Circuit has held, moving witnesses out of state to frustrate a criminal trial. (As a sidenote, the federal Racketeer Influenced and Corrupt Organizations Act has been successfully applied to law enforcement agents committing a pattern of crimes; and the Supreme Court in United States v. Turkette noted that Congress intended to reach “the illegal use of force” as well as “legitimate and illegitimate” groups, with that statute.) Finally,  any person “who aids, abets, counsels, commands, [or] induces” a federal crime, can be convicted as fully for that crime as the direct actor. Similarly, federal conspiracy law sweeps very broadly, reaching everyone who agrees to a criminal course of conduct, even for crimes unintended but reasonably foreseeable. If DHS supervisors or higher-ups back in Washington, D.C. counseled officers on the scene to flee, and/or counseled, commanded, or agreed to block state investigation, they too might be convicted (if federal crimes could be filed at all, as asked in the following section). But are other elements of crime, besides the conduct, satisfied here? Mens Rea? In addition to the conduct, obstruction of justice and other federal crimes can require proof of relatively precise mens rea/mental states, sometimes referred to as “intent,” before charging. As the court surveyed in the 2024 Jan. 6th obstruction case, Fisher v. United States, the mens rea required for any criminal obstruction conviction is a high standard that requires “careful delineation.” Thus, in a 1995 obstruction case, the Supreme Court reversed the conviction of a federal judge whose false conduct was undisputed, ruling that the judge’s knowledge or intention was not sufficiently proved. Similarly, in a 2011 witness-tampering case, the court required that the government prove a relatively specific intent before convicting. That said, the exact mens rea elements in these and other cases are confusing and defy easy description. What was in a person’s mind, their “intent,” is never a simple thing to prove. Seldom is there irrefutable evidence of mens rea. Mind-reading machines do not (yet) exist and a defendant can always deny they had criminal intent (or simply not testify). In the end, criminal intent must often be inferred in a criminal case, as a necessary fact that a jury can find beyond reasonable doubt based on a commonsense evaluation of the assembled evidence. Lacking an undisputed confession, prosecutors often have to look jurors in the eye and ask, in a tone of disbelief, “really?  Do you believe that?” “Are you kidding?!” or just “oh come on!” When federal officers shot Pretti, they were surrounded by angry (if not also terrified) people. It is possible that they hurriedly left with only an intent to preserve their safety (although the norm and training would be to remain and secure the scene). Their further intention in blocking local law enforcement from the scene is unclear. As for the intentions of DHS higher-ups, why they have still not turned over or given access to evidence for state investigators is unknown. However, the effect of obstructing the state’s investigation seems clear. These and a multitude of other factors concerning intent would have to be evaluated before a federal prosecution would be filed. As another sidenote, the federal Travel Act makes it a crime to cross state lines with the intent to commit a crime of violence. But the reverse is not true so far as I know; the language of the statute seems to clearly say that traveling with the criminal intent must precede the violent act. Crossing state lines after having committed, or to conceal, a crime of violence is thus not (yet?) a federal crime. Jurisdictional elements? In addition to actus reas and mens rea requirements, federal crimes commonly include a third requirement, often called “jurisdictional elements.” As the Supreme Court has explained, such requirements provide the federal “hook” necessary to separate federal offenses from general state criminal jurisdiction. These unique federal requirements could provide the largest hurdle to a federal prosecution here (although no one, including me, can pretend perfect knowledge of all the potential crimes that a determined lawyer might find). Federal obstruction of justice statutes require intent to obstruct an “official proceeding,” defined as a federal (not state) investigation or event. The “omnibus” federal obstruction statute appears similarly limited to intending to obstruct federal persons or events. These jurisdictional requirements might thus block an otherwise attractive federal obstruction charge here. Meanwhile, while federal RICO can be applied to a pattern of predicate state crimes, the list of state crimes does not appear to include obstruction offenses. Section 1959 of Title 18 makes violent crimes committed for pecuniary compensation from an enterprise a crime, but absent proof that DHS officers were paid their salaries expressly to act violently, this statute is an impossible or at least extremely awkward fit. None of this is to say with certainty that a federal obstruction charge could not be brought. But a serious examination of the entire federal code and its meaning, and good faith prosecution principles, would be needed before federal crimes would go forward here. What about state prosecutions? Witness tampering is (as is true everywhere) a state crime in Minnesota. So too is evidence tampering or destruction. Perhaps Minnesota will pursue such charges; the Minneapolis District Attorney, Mary Moriarty, has said that “we have jurisdiction here … and I expect to have enough evidence to decide whether charges are appropriate.” As has been well explained elsewhere, the Supreme Court’s 1890 decision in In re Neagle provides federal officers no immunity from state prosecution unless the officer’s conduct was “necessary and proper.” (Contrary claims by federal officials are simply wrong.) This so-called “supremacy immunity” – as explained by Carolyn Shapiro in SCOTUSblog – is akin to immunity which is “qualified,” not absolute. In fact, in 1906 in Drury v. Lewis, the Supreme Court rejected Neagle immunity for two federal soldiers prosecuted for murder in Pennsylvania. If the officers shot the victim after, as the state alleged, he had surrendered, then (said the court without dissent) “it could not reasonably be claimed that the fatal shot was fired in the performance of a duty imposed by the federal law, and the state court ha[s] jurisdiction.” Drury, not Neagle, seems more applicable here. Indeed, an en banc panel of the 9th Circuit ruled in Idaho v. Horiuchi that Drury permitted state prosecution for involuntary manslaughter of an FBI agent who killed the wife of a resisting resident in the infamous Ruby Ridge incident. Of course, qualified immunity itself is a high bar, and the Supreme Court ruled in 2001 that it must be resolved pretrial. However, while removal of a state criminal prosecution of DHS officers and supervisors to federal court would be automatic (since these are federal officers), the case would still be governed by applicable state law. That is the longstanding interpretation of the removal statute and the 1980 case of Arizona v. Manypenny. And some federal judges (and prosecutors) in Minneapolis have not been happy with federal officials, which could influence how such defendants might be treated by federal district courts in Minnesota. Finally, if a precise “clearly established” right is required for qualified immunity, it may be relevant that in the 1997 case of United Statesv. Lanier the court ruled unanimously that some conduct on its face can violate rights “with obvious clarity.” Conclusion Look, I’m not naïve. There is likely to be no federal prosecution to address the Pretti killing and its immediate evidence-interfering aftermath by the current DOJ. But the statute of limitations for federal offenses is generally five years, which begins only after the last overt act (in my hypothetical, efforts to conceal witnesses and evidence from state investigators) has been committed. Minnesota, meanwhile, has statutory charging limits ranging from 3-9 years (and none for homicide offenses), and the period does not run while a defendant is not residing in the state. So stay alert. In the words of the immortals (Yogi Berra and Lenny Kravitz), “it ain’t over til its over” – this case might not be closed. The post Charging Homeland Security bosses: obstruction of justice and the Supreme Court appeared first on SCOTUSblog.

Giving the gift of time is the most valuable gift we can give each other and ourselves. My Dad passed away in 2024 and my best memories of him are not of any of the gifts he gave me (or helped pay for), but of the time I spent with him camping and fishing. Our […] The post Time is the Best Gift appeared first on No Sidebar.

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