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The U.S. Supreme Court has agreed to decide one gun-related case in its new term beginning in October, but two pending gun cases could have far wider impact on the current debate if the justices add them to their docket.
The case in which the justices already agreed to hear arguments and decide is New York State Rifle & Pistol Association v. City of New York. The gun association challenged the city’s rules that barred licensed gun owners from transporting their guns to shooting ranges and second homes outside New York City. But this case could wash out even before the justices hear arguments because the city has changed its rules to allow owners to transport their guns to wherever they are legally allowed to have them. The city now claims the case is moot.
The gun association, which wants the justices to go forward, claims the city’s original rules violate the Second Amendment, which protects an individual right to possess a firearm; the Constitution’s commerce clause, because it prevents commerce outside the city’s limits; and the right to travel.
A federal appellate court decided in favor of the city, concluding that the city’s rules did not violate the association’s Second Amendment rights because it left open “adequate
alternative” means to have a handgun for self-defense in a second home, and allowed access to “ample facilities” for training “within reasonable commuting distance” of a licensee’s home.
If the case goes forward, it does give the justices, for the first time in more than a decade, the opportunity to give guidance to lower courts on how to judge when a gun regulation is so restrictive that it violates the Constitution. Gun rights advocates would like the Supreme Court to rule that gun regulations must be scrutinized under the Constitution’s toughest test — a test that few regulations would pass.
But keep an eye on these two other petitions recently filed in the high court.
Armslist.com is a free, classified advertisements website for listing handguns, pistols, rifles, shotguns, ammunition, archery and hunting equipment. Many gun control groups have criticized Armslist because it connects individuals in the private buying and selling of guns often without background checks.
In 2012, a Wisconsin court granted a restraining order to Zina Haughton, who was routinely abused by her husband. He was ordered to stay away from her and barred from purchasing a firearm. He purchased a semi-automatic handgun using Armslist. The next day, he shot and killed his wife and two of her coworkers.
The Brady Center, aided by the Los Angeles-based law firm, Manatt, Phelps & Phillips, sued Armslist, on behalf of Haughton’s daughter, Yasmeen Daniel, and claimed that the website negligently enabled the sale of a gun to a prohibited buyer.
“Armslist is well aware that its website is a haven for illegal gun buyers and sellers that has resulted in death, but it has chosen to continue its anything-goes, guns-for-all (including criminals and domestic abusers) business model,” states the Brady petition.
Armslist countered that the federal Communications Decency Act, which governs liability on the Internet, barred Wisconsin courts from applying their personal injury laws to the daughter’s claims. Ultimately, the Wisconsin Supreme Court agreed, ruling that the Communications Decency Act barred Wisconsin courts from holding Armslist liable for its own conduct, website design and content, regardless of whether Armslist intended its website to facilitate illegal gun sales.
Is the Wisconsin Supreme Court right? Brady is hoping the justices will answer no. The federal law, argues Brady, “has been applied in wildly inconsistent ways by both state and federal courts, resulting in a patchwork of conflicting decisions and a minefield for Internet providers and victims of online misconduct who seek civil justice.”
The second petition has been filed by Remington Arms and arises out of the 2012 Sandy Hook Elementary School shootings in Newtown, Connecticut, that resulted in the deaths of 21 first-graders and six adults and injuries to two other staff members before the shooter killed himself.
The issue raised by Remington involves interpretation of the federal Protection of Lawful Commerce in Arms Act, which generally bars claims against manufacturers and sellers of firearms and ammunition resulting from criminal use of their products. But the act has an exception, known as the predicate exception.
Under the exception, gun manufacturers or sellers lose their federal immunity from suits if they knowingly violate a state or federal law that applies to the sale or marketing of their products. The Sandy Hook families argued — and the Connecticut Supreme Court agreed — that Remington’s advertisements violated the Connecticut Unfair Trade Practices Act by promoting illegal use of its product. They cited many ads that depicted the gun used in the shootings as a weapon of war designed to kill multiple targets.
Remington argues in its petition that the state court decision needs to be corrected by the U.S. Supreme Court and “threatens to unleash a flood of lawsuits nationwide.”
It’s difficult to say. A majority of the justices have shown no appetite for revisiting the Second Amendment until the recent decision to hear the New York City case.
Justice Clarence Thomas has criticized his colleagues several times for turning away Second Amendment issues. He has called the Second Amendment a “constitutional orphan” and a “disfavored right” in the Supreme Court. At various times, Thomas has been joined in that criticism by Justices Samuel Alito Jr. and Neil Gorsuch.
Only four votes of the justices are required to grant review to a petition. But even when four votes exist, those four justices must weigh whether there will be a potential fifth vote for whatever outcome they may desire.
NewsHour regular, Marcia Coyle, is Chief Washington Correspondent for The National Law Journal where she covers the U.S. Supreme Court and national legal issues.
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