Most of you already know that Chief Counsel Joshua Prince authored an Amicus Brief in Commonwealth v. Hicks representing Firearms Policy Coalition (FPC), Firearm Owners Against Crime (FOAC), and select members of the Pennsylvania General Assembly. That brief played a key role in a major ruling by the Pennsylvania Supreme Court on May 31, 2019.
In a landmark decision, the Court held that merely carrying a firearm, without any other suspicious behavior, does not give police reasonable suspicion to stop someone. This ruling was grounded not just in the Fourth Amendment of the U.S. Constitution, but also in Article 1, Section 8 of the Pennsylvania Constitution. Crucially, because the decision rested on the state constitution, the U.S. Supreme Court has no authority to override it on that basis.
Given that, most assumed the case had reached its final chapter. But in a surprising move, we’ve just learned that the Commonwealth is now petitioning the U.S. Supreme Court to step in.
The U.S. Supreme Court docket for this matter is 19A201, available here. As part of the Court’s routine process when requested by a party, Justice Alito granted the Commonwealth an extension on August 20, 2019, to file its petition for certiorari. The Pennsylvania Supreme Court received that notice today—revealing, for the first time, the Commonwealth’s intention to seek review by the nation’s highest court.
It begs the question, why would Governor Wolf, Attorney General Shapiro, and Lehigh County District Attorney Martin push this case to the U.S. Supreme Court, knowing full well that the Pennsylvania Supreme Court based its ruling on Article 1, Section 8 of the state constitution—something the U.S. Supreme Court has no authority to override? The answer is blunt and undeniable: it is about advancing gun control on a national scale.
Even if the U.S. Supreme Court takes the case and reverses the decision on Fourth Amendment grounds, it wouldn’t change the outcome for Mr. Hicks as his case rests on the Pennsylvania Constitution. So why spend taxpayer dollars chasing an appeal? Simple: it’s a strategic gamble. The goal is to get the U.S. Supreme Court to declare that merely carrying a firearm creates reasonable suspicion of a crime under the Fourth Amendment. That way, the ruling could be used to justify similar stops in other states where only federal constitutional issues apply.
What’s especially noteworthy is that while there’s always a slim chance the U.S. Supreme Court could side with the Commonwealth, it’s highly unlikely. In fact, given the Court’s recent rulings, there’s a real possibility it could deliver a unanimous opinion affirming that simply carrying a firearm doesn’t amount to reasonable suspicion. Now that would be the perfect final blow to the Commonwealth’s argument.