Justices Continue Long, Shameful Silence on Second Amendment :: 06/20/2020

When the Supreme Court earlier this spring dismissed a New York gun case from its docket without ruling on the merits, disappointed Second Amendment advocates still had high hopes.

After all, even though the court hadn’t decided a meaningful Second Amendment case in more than a decade, at least four justices had recently signaled their desire to do so in the near future.

We comforted ourselves with reminders that the court had plenty of pending Second Amendment cases it could take up for next term. Many of them provided even better opportunities for protecting the right to keep and bear arms than those presented in the New York State Pistol & Rifle Association case the court declined to decide in April.

Unfortunately, the court this week dealt a serious blow to hopes that it would hear a Second Amendment case in its next term, denying certiorari in all the gun-related cases pending before it.

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In laymen’s terms, the court effectively said, “We will not review the lower court decisions upholding these constitutionally questionable gun control laws.”

Of course, the court could decide later this year to grant certiorari in a different Second Amendment case that has not yet been filed. But the reality is that the justices were presented with a perfect opportunity unlikely to repeat itself later this term, and still declined to take up a case.

That does not bode well for the near future.

To put it bluntly, the justices had their pick of the litter. There was a slew of excellent cases to choose from, representing a wide variety of Second Amendment issues from different states and with different plaintiffs.

Several cases involved state bans on the possession of so-called “assault weapons,” where the court could have clarified whether semi-automatic rifles are the sorts of firearms “commonly used by law-abiding citizens for lawful purposes” that are protected under District of Columbia v. Heller.

Several more cases challenged state requirements of “good cause” for concealed carry permits, where the court could have addressed the scope of the Second Amendment’s protection outside the home.

Other cases dealt with tangential but nonetheless important questions: Can California limit ownership of handguns to a select list of those it arbitrarily deems “safe”? Can states effectively prohibit concealed carry permits for nonresidents? Did the federal government violate the Second and Fifth Amendments by banning interstate handgun sales?

Given these options, the court’s blanket refusal to take up a new Second Amendment case was not a matter of simply waiting for a better fact pattern on the basis that “bad cases make bad law.”

No. This was, at a fundamental level, another abdication by the court in which it once again declined to do its job of saying what the law is with respect to the Second Amendment.

That’s particularly shocking when it comes to the line of cases involving “good cause” requirements for concealed carry permits, where lower courts are split on the matter.

That abdication did not go unnoticed by some members of the court. Justice Clarence Thomas, joined by Justice Brett Kavanaugh, dissented from the denial of certiorari in Rogers v. Grewal, which challenged a New Jersey “good cause” law that, in practice, resulted in a near-total prohibition on concealed carry permits for law-abiding citizens.

Thomas correctly pointed out that “[o]ne of this court’s primary functions is to resolve ‘important matters’ on which the courts of appeal are ‘in conflict.’ The question of whether a State can effectively ban most citizens from exercising their fundamental right to bear arms surely qualifies as such a matter.”

In Thomas’ view, the court should “settle the conflict among the lower courts so that the fundamental protections set forth in our Constitution are applied equally to all citizens.”

Thomas further noted that many lower courts have routinely undermined the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago. Not only have these courts created a Second Amendment test that is “entirely made up,” but the practical results of that test have been to limit a constitutional right to a judge’s assessment of whether the right is useful at the moment.

How can we possibly explain the court’s continued silence on such an important constitutional issue? After all, it would seem unthinkable that the court would go 10 years without deciding a meaningful First Amendment case, particularly if several states passed statutes requiring “good cause” showings when applying for “public speech permits.”

Given that four of the “conservative” justices—Thomas, Kavanaugh, Samuel Alito, and Neil Gorsuch—have previously signaled their desire that the court address important Second Amendment questions, the problem appears to lie with Chief Justice John Roberts.

It’s possible, though not likely, that Roberts—who joined the Heller and McDonald majorities without reservation—has reevaluated his previous positions on the Second Amendment. Perhaps he never believed the Second Amendment protected much more than an individual right of private citizens to possess handguns inside the home, the most narrow and limited position of the holdings in those cases.

But, more likely, he simply has not tipped his hand in a meaningful way, and the other four conservative justices fear that forcing the issue may have disastrous consequences.

Why might Roberts refuse to tip his hand? It seems at least plausible that Roberts, ever concerned with “institutional legitimacy,” is waiting for a better “political moment.”

Instead of worrying whether the cases before the court present valuable opportunities to correct lower court errors and clarify what the law is, Roberts might be worried about whether the cases present an opportunity for judicial unity.

That makes sense in light of the one Second Amendment case Roberts felt comfortable hearing earlier this year. New York City’s law in the now-dismissed case was so insanely restrictive that, had the city not slightly amended the law and successfully argued the case was moot, the majority opinion might have garnered at least one vote (and perhaps more) from the court’s liberal wing.

By avoiding a contentious 5-4 ruling split along conservative-liberal lines, the court would also avoid the all-too-common outcry from liberal politicians who lambaste justices and demand a court-packing plan because they didn’t get the result they wanted.

It seems more than possible that Roberts is waiting for another “slam dunk” case.

The problem is that, even if another justice had joined a hypothetical majority opinion in New York State Pistol & Rifle, he or she likely would have done so only on the narrowest of grounds, overturning New York City’s particular law without agreeing to any jurisprudence that endangered more common gun control laws.

In other words, none of the liberal justices is likely to ever side with Roberts, et al., in a meaningful Second Amendment case that would broadly strike down “assault weapons” bans or “good cause” concealed carry laws.

If we are waiting for Roberts to find a Second Amendment “judicial unity” case for this court’s current composition, we will be waiting in vain for another decade.

The nation can’t afford that type of wait. We need a court with the courage to say what the law is, even when some politicians don’t want to hear it.

https://www.dailysignal.com/2020/06/18/justices-continue-long-shameful-silence-on-second-amendment/