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GVR FOR FIP
Reading the tea leaves on Supreme Court certiorari decisions would seem to be more the province of SCOTUS geeks, but two GVRs last week have set several gun law observers to speculating that the high court may be looking for a lower court decision that narrows the cases in which the federal ban on felons possessing guns is constitutional (or tees up the issue for the Supreme Court itself).
A ‘GVR’ is a Supreme Court order that simultaneously GRANTS certiorari, VACATES the lower court judgment, and REMANDS the case to the lower court to reconsider it in light of some recent decision. Last week the Supremes GVR’d two 11th Circuit cases, United States v. Rambo and United States v. Whitaker – both challenging whether 18 USC § 922(g)(1)’s felon-in-possession ban violated the 2nd Amendment as applied to the defendants – “for further consideration in light of United States v. Rahimi.”
In Rambo and Whitaker, the 11th held that Rahimi did not abrogate its prior decision that § 922(g)(1) was constitutional as applied to any felon because Rahimi “did not discuss § 922(g)(1) at all, nor did it undermine our previous interpretation of Heller.”
Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog that “[t]his would not be a big deal, except both Whitaker and Rambo were resolved by the 11th Circuit after the Supreme Court’s Rahimi ruling; the 11th Circuit in these cases asserted that Rahimi did not undermine its precedents categorically rejecting a 2nd Amendment challenge to the federal felon-in-possession charge. As I read it, these GVRs are essentially statements from SCOTUS that Rahimi in fact does undermine — or at least should or may be read as undermining — any and all pre-Rahimi precedents that categorically foreclose a 2nd Amendment challenge to broad felon-in-possession laws.”
In the gun law newsletter The Reload, Jake Fogleman noted that “[e]very other 2nd Amendment case sent back down to date has involved a decision that predated [Rahimi]… But the case[s] the justices just sent back [were] already decided in a post-Rahimi world.
Fogleman suggested that maybe SCOTUS just wanted the 11th to explain why it thought Rahimi was irrelevant to the Rambo and Whitaker challenges. However, he conceded that another way to interpret the two GVRs is “that the Court is telegraphing its preferred application of Rahimi to the question of gun rights for convicted felons.” After all, while Rahimi addressed banning guns for those subject to domestic violence restraining orders, the high court “may nevertheless view its focus on individualized judicial findings of dangerousness and temporary disarmament as incompatible with a lower court standard that provides blanket approval of lifetime disarmament for all types of felons.”
Fogleman admitted that his “interpretations rely on tea leaf reading, a potentially perilous endeavor for an institution as opaque as the Supreme Court. Only the justices themselves know what their actions genuinely entail. However, the unusual step of vacating and remanding a decision to be reconsidered in light of an already-cited case suggests something deeper could be at play.”
We are far from a Supreme Court holding that § 922(g)(1) violates the 2nd Amendment when applied to nonviolent felons, but last week’s GVR action suggests that the high court may get to the question next year.
Order List, Supreme Court, 604 U.S. — (February 24, 2025)
United States v. Rambo, Case No. 23-13772, 2024 U.S.App. LEXIS 18375 (11th Cir., July 25, 2024)
United States v. Whitaker, Case No 24-10693, 2024 U.S.App. LEXIS 20426 (11th Cir., August 14, 2024)
Sentencing Law and Policy, Latest SCOTUS order list full of intrigue while engaging 2nd, 4th and 6th Amendment (originalist?) jurisprudence (February 4, 2025)
The Reload, Analysis: What to Make of the Supreme Court’s Latest GVR (February 28, 2025)
– Thomas L. Root
