Another gun case waits in the wings

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Petitions of the Week
A courier drops off a package at the Supreme Court

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

On Thursday, the court issued its first major ruling on the Second Amendment in over a decade, striking down a New York gun regulation and holding that the right to bear arms extends outside the home. Fourteen years earlier, the court’s modern jurisprudence on guns began with the decision in District of Columbia v. Heller, striking down a D.C. gun regulation and holding that the Constitution protects an individual right to keep guns inside the home. This week, we highlight cert petitions that ask the court to consider, among other things, whether a post-Heller regulation that prevents anyone in the District of Columbia with a “propensity for violence or instability” from obtaining a license to carry a gun is unconstitutionally vague.

Allen Whitaker is a resident of Washington, D.C., who holds a handgun license. In April 2019, police stopped Whitaker, who is Black and wears dreadlocks, and his male cousin at gunpoint when they were returning from a gun range with Whitaker’s daughter and girlfriend and stopped at a gas station at which a few of the other patrons got into an altercation. Noticing that Whitaker wore an empty pistol holster on his waist, the officers handcuffed the two men. They searched the vehicle as well as Whitaker and his family, found an amount of marijuana legally permissible in the District belonging to Whitaker’s girlfriend, and seized both the marijuana and Whitaker’s gun that was stored in a lockbox in the trunk. The police eventually released Whitaker and his family without charge, but they refused to return the handgun.

After applying to register a new firearm, Whitaker received notice from the Metropolitan Police Department that his gun license would be revoked. D.C. law allows the MPD to determine whether a person is a “suitable” applicant to own a handgun. The notice explained that the gas-station incident, combined with Whitaker’s misdemeanor criminal history that had been evaluated in his originally approved application for a gun license, demonstrated a “propensity for violence or instability” unsuitable for a firearm owner. The Concealed Pistol Licensing Review Board denied Whitaker’s administrative appeal. Whitaker filed suit in the D.C. Court of Appeals, which dismissed the case as moot after the MPD voluntarily reinstated Whitaker’s license mid-litigation. In Whitaker v. District of Columbia Concealed Pistol Licensing Review Board, Whitaker asks the justices to review two aspects of the appeals court’s dismissal.

On the merits, Whitaker argues that the D.C. regulation is unconstitutionally vague. The “propensity for violence or instability” standard, Whitaker says, “confers standardless discretion on the MPD to disqualify anyone [for a gun license] based on the agency’s subjective judgment.”

On mootness, Whitaker asks the justices to rule that his case still presents a live controversy. Gun owners in the District of Columbia must renew their license every two years. Because the MPD’s decision to reverse its revocation of his license never “conceded that the April 2019 incident does not provide cause to deny [him] a license,” Whitaker argues, nothing prevents the MPD from revoking his license for the same reason down the road. Two years ago, the justices dismissed as moot a challenge to a New York City regulation that banned the carrying of a gun at any public place except for a gun range – for example, at a gas station on the way to or from a gun range, an exact scenario asked about at oral argument – after the city repealed the regulation once the justices granted review. Key to that decision was a fact absent here: a law passed in the interim by the state of New York that prevents any city or locality from reinstating a similar regulation.

A list of this week’s featured petitions is below:

Lowery v. Joffe
21-1535
Issues: (1) Whether, or in what circumstances, a cy pres award that provides no direct relief or benefit to class members comports with the Federal Rule of Civil Procedure 23(e) requirement that a settlement binding class members must be “fair, reasonable, and adequate”; and (2) whether Rule 23(b)(3) permits certification of a class where the district court has found that class members cannot be ascertained or even self-identify without an individualized “difficult and expensive” inquiry.

Whitaker v. District of Columbia Concealed Pistol Licensing Review Board
21-1545
Issues: (1) Whether the government can render moot a fully briefed appeal challenging the denial of a license to carry a pistol by granting the license, though not confessing error, when the license must later be renewed under the same assertedly illegal standard; and (2) whether a regulation that disqualifies applicants for gun licenses who have exhibited an undefined “propensity for violence or instability” is unconstitutionally vague.

Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County
21-1550
Issues: (1) Whether federal common law necessarily and exclusively governs claims seeking redress for injuries allegedly caused by the effect of interstate greenhouse-gas emissions on the global climate; and (2) whether a federal district court has jurisdiction under 28 U.S.C. § 1331 over claims necessarily and exclusively governed by federal common law but labeled as arising under state law.

Central Specialties, Inc. v. Large
21-1552
Issue: Whether, before proceeding to the qualified immunity analysis, courts must determine that a government official was acting within the scope of his authority.



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