By Larry Keane
The U.S. Supreme Court on Monday decided to refuse to hear any of the nearly a dozen Second Amendment-related cases pending before it. This is deeply disappointing and troubling to America’s over 100 million law-abiding firearm owners. Justice Clarence Thomas, joined by Justice Brett Kavanagh, issued a dissent in one of the cases, Rogers v Gurbir, challenging New Jersey’s requirement that in order to exercise your Second Amendment right to bear – that is to carry a firearm on your person for self-protection – you must demonstrate to the state a “justifiable need” or a “good reason.”
As Justices Thomas and Kavanaugh note, “This Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights. And it seems highly unlikely that the Court would allow a State to enforce a law requiring a woman to provide a justifiable need before seeking an abortion.” Yet, when faced with such a restriction on the Second Amendment, “the Court simply looks the other way.”
Ten Years’ Frustration
In his dissent, Justice Thomas explains how the federal courts of appeals are not faithfully applying the Court’s holding in Heller and McDonald, observing “With what other constitutional right would this Court allow such blatant defiance of its precedent?” The frustration among the Justices that the lower courts are treating the Second Amendment as a second-class right isn’t new. Justices Thomas and Gorsuch vented their frustration with the Supreme Court’s refusal to grant review in the Peruta v California case in 2017. Justice Thomas wrote the case “reflects a distressing trend: their treatment of the Second Amendment as a disfavored right.” He added, “For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense.”
A year later, in dissenting from a denial to grant certiorari in Silvester v Becerra he said, “The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message . . . this Court declared [in McDonald] that the Second Amendment is not a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’”
Just this term, in NYSRPA v City of New York, Justice Samuel Alito wrote a well-reasoned dissent, which Justices Neil Gorsuch and Clarence Thomas (mostly concurring) discussing how the plaintiffs’ Second Amendment claims were handled. Justice Alito wrote, “Although the courts below claimed to apply heightened scrutiny, there was nothing heightened about what they did.” He concluded his dissenting opinion by noting, “We are told that the mode of review in this case is representative of the way Heller has been treated in the lower courts. If that is true, there is cause for concern.”
The now commonly applied “two-step inquiry” is described by Justice Thomas as “entirely made up” and “entirely inconsistent with Heller.”
Following the City of New York decision, there was cause for optimism that the Supreme Court would finally use one or more of the cases it today rejected to clarify the scope of the Second Amendment and provide a course correction for the appellate courts which have applied, in effect, Justice Stephen Breyers’ “interest balancing test” expressly rejected by the Court in Heller. The optimism was based on Justice Kavanaugh’s concurring opinion where we wrote, “The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.” We had hoped – expected – Justice Kavanaugh’s words would be prophetic.
Instead of reprieve, Monday offered a bucket of cold water thrown on those hopes and expectations. The lingering question remains. Why? It seems clear that Justices Thomas, Alito, Kavanaugh and Gorsuch are troubled by the “blatant defiance” by the lower appellate courts of the Supreme Court’s precedent in Heller and McDonald. One would expect the block to accept at least one of the pending Second Amendment cases. They did not. That leaves Chief Justice John Roberts, who was part of the 5-4 majorities in Heller and McDonald. We’re left with inevitable questions including if he has had a change of thinking on the Second Amendment or is the Chief Justice responding to the amicus brief filed in the City of New York case by U.S. Senators Sheldon Whitehouse (D-R.I.), Mazie Hirono (D-Hawaii), Richard Blumenthal (D-Conn.), Richard Durbin (D-Ill.), and Kirsten Gillibrand (D-N.Y.) that threatened the Court with political consequences.
“The Supreme Court is not well. And the people know it,” the senators’ brief reads. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”
“United States Senators, four of whom are members of the bar of this Court, filed a brief insisting that the case be dismissed,” Justice Alito wrote. “If the Court did not do so, they intimated, the public would realize that the Court is ‘motivated mainly by politics, rather than by adherence to the law,’ and the Court would face the possibility of legislative reprisal.”
Senate Majority Leader McConnell (R-Ky.), joined by 52 senators, wrote to the Court to reassure them that judicial integrity would be respected under his watch.
Ironically, these same senators smeared Justice Kavanaugh’s name and reputation during his confirmation hearing. Justice Alito made it clear the Supreme Court’s integrity, and that of the senators who confirm justices, was on the line.
One has to wonder whether one or more of the four conservative Justices who have expressed frustration as I have outlined above, are keeping the ball – or pen – away from the Chief Justice because they fear what he might do if the Court accepts a Second Amendment case.
Whatever the reason – and it seems unlikely to be based on the underlying merits of the appeals – the decision by the Supreme Court to sidestep Second Amendment cases once again demonstrates the importance of continuing to work to secure our Second Amendment rights to “keep and bear arms.” Only one vote stands between keeping those rights and a Supreme Court reversing Heller and McDonald and stripping American’s of their God-given fundamental right to self-defense. The next President and Senate will decide whether we continue to enjoy those rights or they are taken from us permanently.
Larry Keane is Senior Vice President of Government and Public Affairs and General Counsel for the National Shooting Sports Foundation, the firearms industry trade association.