esqappellate
President, MSI
- Feb 12, 2012
- 7,408
The odds of a cert grant in Binderup on the gov's petition are pretty good, around 50%. The central issue is whether an "as applied" challenge is ever available and the courts (including the 3d Cir. en banc below) have struggled with that (OMG, it is about GUNS!!) ON that issue, we have a "minor" circuit split with only the 10th Circuit rejecting as applied challenges. I agree with Alan Gura's reading of the other circuits' holdings as not foreclosing an as applied challenge. See BIO at 28-30. If the Court takes it, Gura wins on whether any as applied challenge is ever available and probably wins on the merits of the actual challenge on the facts presented here. As to Peruta, it is more or less a coincidence that Peruta and Binderup are before the Court in the same term. That said, I think the Court is considering both at the same time and thus it is inevitable that each petition influences the Court's thinking in both cases. That Justice Gorsuch needs time is undoubtedly also a factor. I do think they waited on Peruta until he was sworn in (the reschedules tell me that) and the Court will give him the time he needs. If Binderup was alone and this was a normal time, I think the odds of a grant would be really good, if only because of the factors you identify. But, these are not normal times on the Court. Grants in both Binderup and Peruta may be a stretch in that two 2A cases in the same Term may be perhaps more than that with which the Court is prepared to deal. Or, on the other hand, grants in both might be viewed as a chance to really firmly establish Heller as precedent. The real wild card here is whether Justice Kennedy will retire at the end of Term (as rumored) and, if so, whether he has communicated that to the rest of the Court. That will leave the Court at 8 (which would suggest cert denied in both), but it only takes 4 to grant a petition and those 4 might calculate that they will have a fifth by the start of Term in October, now that the Democrats have shot themselves in the head with respect to filibuster. All sorts of things to think about, plus, of course, this is occurring at the end of Term when the Court is rushing to get opinions out the door and deciding on cert for all the rest of the petitions up for consideration. VERY hard (read, impossible) to predict how all this washes out.
