US Supreme Court allows Delaware AWB to stand

[Clarence]

https://www.straitstimes.com/world/us-supreme-court-turns-away-gun-law-challenges-in-delaware-maryland

Looks like US Supreme Court will let Delaware Assault weapon ban stand.

This is crushing blow but apparently the case against the Maryland so called assault weapon ban was not acted upon.

[MarcWinkman]

https://www.straitstimes.com/world/us-supreme-court-turns-away-gun-law-challenges-in-delaware-maryland

Looks like US Supreme Court will let Delaware Assault weapon ban stand.

This is crushing blow but apparently the case against the Maryland so called assault weapon ban was not acted upon.

This isn't the end of the world.  The Snope case and the Ocean State Tactical cases are both alive and well.  The Snope case is dealing with Maryland's AWB and Ocean State Tactical is the Rhode Island case dealing with magazine capacity bans.  Keep in mind that Gray v. Jennings was seeking certiorari to resolve the question as to the proper standard which a District Court (federal trial court) should apply in deciding whether to grant an injunction.  The case never got decided on the merits. 

I have a feeling that Snope and Ocean State Tactical are going to be relisted for conference on January 17, 2025. I imagine that since there wasn't an outright denial of certiorari in either the Snop or Ocean State Tactical case and considering that Gray v. Jennings was denied certiorari given its procedural posture (i.e. not having been tried on the merits in the Delaware District Court), I imagine that the Chief Justice, as is his practice, had directed the other Justices to have their law clerks do the leg work to ensure that there are no procedural defects in Snope or Ocean State Tactical prior to the January 17 re-conference.

Don't let the fact that the Delaware AWB case was denied certiorari discourage you because there was at the same time this past Friday another couple of cases conferenced that touched and concerned the same thing as Gray v. Jennings and they enjoy the advantage of having been litigated to final judgments in one manner or another.

[Arado 234]

Curious question: Since The Supreme Court didn't grant certiorari for Gray v. Jennings because of not having been tried on its merits, is the case automatically returned to the lower court, with the instructions by SCOTUS to the lower court to "try it again" based on its merits? Or is this the end of the line for Gray v. Jennings?

[Clarence]

Thanks Marc.  You are such a valuable member of this forum. 

[Just Bill]

The politicians all agreed that this violated the Delaware Constitution, so who cares???  Apparently no one!  We're screwed!

[slsharp]

I take it that "denied certiorari given its procedural posture (i.e. not having been tried on the merits in the Delaware District Court)" means that somebody screwed up, or didn't do their job properly. Either a lawyer or a Judge?
-Simon

[MarcWinkman]

Curious question: Since The Supreme Court didn't grant certiorari for Gray v. Jennings because of not having been tried on its merits, is the case automatically returned to the lower court, with the instructions by SCOTUS to the lower court to "try it again" based on its merits? Or is this the end of the line for Gray v. Jennings?

This is one of those questions that will get the typical lawyer answer of "it depends".  Typically when the SCOTUS denies certiorari in a case that is an interlocutory appeal such as Gray v. Jennings, there is no accompanying order that the case be tried on the merits.  In cases like Gray v. Jennings how far the case goes will generally be a question of how deep are the plaintiffs' pockets.  In a case such as this one where the prayer for relief in the initial complaint is for declaratory relief, the attorneys bill by the hour. 

What happens with Gray v. Jennings may hinge upon what the SCOTUS winds up doing in Snope and Ocean State Tactical.  If they are re-conferenced on January 17 and there is a grant of certiorari in those cases for this term, then the parties in Gray v. Jennings may stipulate to stay further proceedings pending an outcome of those cases since the outcome would ultimately be case determinative.  If the SCOTUS were to apply Heller's "in common use" and some of the dicta in that decision relating to long guns to find that the AWB and magazine bans violate the Second Amendment's plain text, then I imagine that the plaintiffs in Gray v. Jennings would move for and receive a grant of summary judgment in their favor. 

If on the other hand SCOTUS passes on Snope and Ocean State Tactical until next term, which could happen since we're fairly long in the tooth into the 2024-2025 term, assuming that the plaintiffs have the means to do so, litigation in Gray v. Jennings will proceed to discovery and ultimately to pre-trial motions practice, and if neither side is granted a summary judgment at the end of motions practice, then the case would be tried on its merits.  Whether or the pre-trial motions practice and a final trial disposition would occur in Gray v. Jennings before a decision in Snope or Ocean State Tactical either during the tail end of the 2024-2025 term or early into the 2025-2026 term is anyone's guess. 

[MarcWinkman]

I take it that "denied certiorari given its procedural posture (i.e. not having been tried on the merits in the Delaware District Court)" means that somebody screwed up, or didn't do their job properly. Either a lawyer or a Judge?
-Simon

Not at all.  SCOTUS is the nation's court of last resort and will typically not decide an interlocutory case.  Granted, there have been some exceptions over the last several months pertaining to immunity and whether a NY State court could proceed with sentencing, but typically cases that are interlocutory aren't granted certiorari.  Keep in mind that Gray v. Jennings isn't the first AWB case since Bruen to have been denied certiorari because the question was ultimately whether it was legal error to deny a preliminary injunction against enforcing an AWB.  A preliminary injunction decision is ALWAYS an interlocutory decision of a court and it is going to be granted or denied on a much more limited record before a judge than a final judgment on the merits.  Keep in mind that at the preliminary injunction stage of litigation, there hasn't even been a full exchange of discovery between the parties.

Something like what happened with Gray v. Jennings isn't super surprising to me and isn't the product of someone dropping the ball somewhere.  In actuality it's more of an attempt at a hail mary pass that didn't shake out as desired.  Something that I could foresee happening is that if SCOTUS grants cert following a re-conference of Snope and Ocean State Tactical, then plaintiffs' counsel in Gray may join the Snope case, not as parties, but as amici and submit a brief in that capacity.  I could also foresee SCOTUS consolidating Snope and Ocean State Tactical given that the question presented in each touches fingers with the Second Amendment in VERY similar fashion.

[MarcWinkman]

Having just looked at the docket for Snope v. Brown, this is relisted and circulated for conference on January 17.  I'm going to cautiously predict that we will see something from the high court by Tuesday of next week stating that certiorari has been granted.  This is just my cautions assumption, however based upon my knowledge of how Chief Justice Roberts does things administratively when the petitioner in a case going before SCOTUS is not the Solicitor General of the United States.

[slsharp]

Thank you for keeping us updated on this very important issue affecting not only Delaware, but the entire USA.
-Simon

[MarcWinkman]

Having just looked at the docket for Snope v. Brown, this is relisted and circulated for conference on January 17.  I'm going to cautiously predict that we will see something from the high court by Tuesday of next week stating that certiorari has been granted.  This is just my cautions assumption, however based upon my knowledge of how Chief Justice Roberts does things administratively when the petitioner in a case going before SCOTUS is not the Solicitor General of the United States.

I neglected to mention that Ocean State Tactical was also relisted for conference on January 17.

[MarcWinkman]

Today is the big re-conference day for Snope and Ocean State Tactical.  I'm not sure whether SCOTUS would issue the order granting cert later this evening like they did last week where the petitioner was the Solicitor General's office or whether it will be issued as an ordinary order on Tuesday given that Monday is a holiday and also inauguration day.

[MarcWinkman]

Well, Snope and Ocean State Tactical were not on the miscellaneous order for grant of certiorari that was released late Friday afternoon.  A subsequent order relisting them for conference on January 24 will probably be issued on Tuesday.  If they are conferenced again and certiorari isn't granted following the January 24 conference, then these cases won't be heard for the 2024-2025 session of the Court.  That's not to say that they won't be heard, but it will mean that it will be a while longer before they are heard.  This isn't the worst news on earth.  Keep in mind that Heller and Bruen both were passed several times before being heard. 

[Arado 234]

Thank you for the update.

[Just Bill]

In the meantime, DE legislators are getting ready to dump more unconstitutional laws on us.  I had a call from the State Police that the new background check system is about to go into effect.  But no more Fed NICS check.