Supreme Court refuses to hear Second Amendment case challenging appointment of acting AG News
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Supreme Court refuses to hear Second Amendment case challenging appointment of acting AG

The Supreme Court declined Monday to hear a challenge to the appointment of Acting Attorney General Matthew Whitaker stemming from a case involving Second amendment rights for non-violent felons.

Barry Michaels, a candidate for Congress in Nevada, is appealing a Ninth Circuit decision denying his right to carry a firearm after being convicted for non-violent felony charges.

Michaels filed a writ of certiorari last June to appeal the federal appeals court’s holding that anyone convicted of a felony cannot carry a firearm under the Federal Gun Control Act. The petitioner was convicted of various fraud felony charges, served time and now contends that his right to carry a firearm and protect himself is being violated because of his prior felony convictions.

The justices also denied the plaintiff’s motion to substitute Rod Rosenstein, the Deputy Attorney General, with Matthew Whitaker, who was appointed after Jeff Sessions resigned back in November 2018.

Petitioner argues that under the Constitution’s Appointment Clause, the President has the power to appoint and the Senate must approve such nominations. Congress has also passed statutes creating positions that directly serve under the Attorney General. For the case of vacancies or replacements, the legal ground is less clear. Michaels contends that the Acting Attorney General should be an already Senate-confirmed representative. The Supreme Court ultimately denied the motion to substitute and the petition to hear the case altogether.

The Department of Justice Office of Legal Counsel published a memo regarding the validity of President Trump’s appointment of Whitaker citing to historical examples of filling vacancies with non-Senate confirmed individuals, but the issue could still be challenged in a separate pending federal court case involving the State of Maryland.

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