Sacramento, CA –-(Ammoland.com)-On January 17, 2012, the Supreme Court of the United States declined to accept and review People v. Delacy, 192 Cal. App. 4th 1481 (2011), review denied (June 8, 2011), cert. denied, No. 11-290, 2012 WL 117549 (U.S. Jan. 17, 2012).
In his Petition for a Writ of Certiorari, lawyers with the Michel & Associates law firm representing Mr. Delacy asked the Supreme Court to decide whether language from its 2008 opinion in District of Columbia v. Heller, 554 U.S. 570 (2008) concerning “presumptively lawful” restrictions on the right to keep and bear arms allowed courts to simply hold restrictions on the Second Amendment rights of those with certain misdemeanor convictions to be constitutional without being subjected to any level of heightened judicial scrutiny. The Delacy case also touched on what level of judicial scrutiny should apply to an Equal Protection challenge asserting the government is creating discriminatory classifications that deprive those so classified of their Second Amendment rights.
Even though the Supreme Court requested a response to the Delacy petition from the government in October 2011 – an unusual move that shows the high court had unusual interest in the case – Delacy ended up being another in a line of recent Second Amendment-related cases which the Supreme Court declined to accept for review.
Certiorari was also denied on the same day in Lowery v. United States, No. 06-CM-1195, 2010 WL 3501574 (D.C. Sept. 9, 2010), cert. denied, 11-5241, 2012 WL 117590 (U.S. Jan. 17, 2012). The Lowery case sought review of whether the right to keep and bear arms as set forth in Heller applied retroactively to a person who was convicted of possessing a handgun in violation of the very restriction struck down as unconstitutional in Heller.
Other Second Amendment-related cases recently denied review by the Court include Williams v. Maryland, U.S. v. Masciandaro, and Winters v. Willis.
Williams v. State (Maryland), 417 Md. 479 (2011), cert. denied, 132 S. Ct. 93 (U.S. Oct. 3, 2011) asked the Supreme Court to decide whether the Second Amendment protects a right to carry or transport a registered handgun outside the home, the enjoyment of which cannot be conditional on first applying for a permit to do so that is practically unobtainable. Mr. Williams was appealing his conviction for possessing a handgun in public without the required state permit allowing him to do so.
United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011), cert. denied, No. 10-11212, 2011 WL 2516854 (U.S. Nov. 28, 2011) involved a man convicted of violating the federal prohibition on carrying or possessing a loaded weapon in vehicles in National Parks after he was found asleep in his vehicle with a loaded handgun in a national parks. He sought review from the Supreme Court of whether that prohibition violates the Second Amendment right to bear arms; asking the high court, like the petitioner in Williams, whether the right extends beyond the home.
Willis v. Winters, 350 Or. 299 (2011) cert. denied, 11-120, 2012 WL 33296 (U.S. Jan. 9, 2012) involved a group of Oregon sheriffs asking the Supreme Court to clarify whether they can disregard an Oregon State Supreme Court decision requiring them to issue licenses to carry firearms to medical marijuana patients, which would arguably make them violate federal law. One question that would potentially had to have been resolved – like several other cases seeking review from the Supreme Court – was whether there is a right to carry firearms outside the home for self-defense. This case also could have potentially had a wide-reaching effect regarding who is considered an unlawful user of or addicted to any controlled substance, which is a disqualifier for firearm possession under federal law.
Despite the number of certiorari denials in Second Amendment cases, the fact that the Supreme Court has been requesting responses in many of these cases shows the Justices are paying unusually close attention to the Second Amendment issue. Of the roughly 8000 petitions for review filed with the Supreme Court every year, the Court only requests a response from the opposing party in a few hundred. When the Court requests a response brief, it is a strong sign that the Court is interested in hearing argument in a case. Such a request increases the probability that the Court will grant oral argument by roughly 9 times, from 0.9% to 8.6%.
The fact that the Supreme Court requested a response in all these cases does not mean the Court thinks the cases were decided correctly. It more likely suggests that the Court is interested in further clarifying the scope of Second Amendment rights after Heller and McDonald, but is searching for the right case vehicle to do it in.
Perhaps one of the two remaining Second Amendment cases pending before the Court that we are aware of (United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011), petition for cert. filed, No. 11-7200 (Nov. 2, 2011) (a challenge to federal law prohibiting gun possession by illegal aliens) or United States v. Booker, 644 F.3d 12 (1st Cir. 2011), petition for cert. filed, No. 11-6765 (Oct. 3, 2011)(a challenge to federal law prohibiting gun possession by persons convicted of domestic violence)) will become the vehicle that settles some of the issues that remain outstanding in the wake of the Heller ruling.
Seventeen years ago the NRA and CRPA joined forces to fight local gun bans being written and pushed in California by the gun ban lobby. Their coordinated efforts became the NRA/CRPA “Local Ordinance Project” (LOP) – a statewide campaign to fight ill-conceived local efforts at gun control and educate politicians about available programs that are effective in reducing accidents and violence without infringing on the rights of law-abiding gun owners. The NRA/CRPA LOP has had tremendous success in beating back most of these anti-self-defense proposals.
In addition to fighting local gun bans, for decades the NRA has been litigating dozens of cases in California courts to promote the right to self-defense and the Second Amendment. In the post Heller and McDonald legal environment, NRA and CRPA Foundation have formed the NRA/CRPA Foundation Legal Action Project (LAP), a joint venture to pro-actively strike down ill-conceived gun control laws and ordinances and advance the rights of firearms owners, specifically in California. Sometimes, success is more likely when LAP's litigation efforts are kept low profile, so the details of every lawsuit are not always released. To see a partial list of the LAP's recent accomplishments, or to contribute to the NRA or to the NRA/CRPAF LAP and support this and similar Second Amendment cases, visit www.nraila.com and www.crpafoundation.org.