Greetings all:
A Petition for Writ of Certiorari has been filed in the case of Gray v. Jennings (the Delaware Assault/Mag ban case). Having read the petition, I think that there is a better chance of the Supreme Court granting cert in this case versus any of the other assault/mag cases because of the manner in which Judge Bebos wrote the opinion in the Third Circuit case. You may recall that when breaking down the Third Circuit opinion, I pointed out that the case was upheld on procedural rather than substantive grounds. This is important because it created a circuit split, and guess what the U.S. Supreme Court really dislikes...circuit splits. The Seventh and Ninth Circuit both hold that where a party is seeking a preliminary injunction to prevent enforcement of an unconstitutional law, that irreparable harm is shown per se and there is no need for the petitioner to prove the remaining injunction factors. The factors that must be shown in an injunction, that the plaintiff will suffer irreparable harm in the absence of the injunction; that the plaintiff is likely to succeed on the merits at trial (for a preliminary injunction) or that the plaintiff has in fact prevailed on the merits (for permanent injunction); that the balance of equities tips in favor of granting injunctive relief; and that granting injunctive relief is consistent with the public interest.
In the Third Circuit, the Court held that a showing a probable violation of a constitutional right is not per se irreparable harm, and the plaintiff must prove how the violation of a constitutional right is irreparable harm in addition to proving out the remaining injunction factors.
The petition for Writ of Certiorari presents three questions to the Court: 1) the circuit split as to whether infringement of a plaintiff's second amendment rights constitutes per se irreparable harm - the Seventh and Ninth Circuits say yes, the Third Circuit says no; 2) to resolve conflict of lower courts with Supreme Court decisions where the lower courts are applying less protective rules to second amendment claims in derogation of the Supreme Court's holdings in Heller and Bruen; and 3) to resolve the lower court split as to which constitutional violations inflict per se irreparable harm.
I give this case a 50-50 chance of being taken up by the Supreme Court this term. If certiorari is denied, it will almost certainly be because the Court is being asked to decide an interlocutory issue. The grant or denial of a preliminary injunction is not a case determinative ruling on the merits. Given the Circuit split, however, I think that this has a better chance than the assault/mag ban cases from the Fourth, Seventh, and Ninth Circuits.
