The United States Supreme Court announced today its decision to deny certiorari to several gun-related cases that gun rights advocates had hoped would clarify state restrictions on concealed carry, semi-automatic firearms, and magazine capacity.
The decision is a major blow for the pro-2A movement. Groups like the Second Amendment Foundation had hoped the Court would take one of these cases after it threw out a gun-related case from New York earlier this year. President Trump’s appointment of Neil Gorsuch and Brett Kavanaugh also gave 2A groups reason to hope that the court would break its decade-long silence on Second Amendment issues.
But in its orders published today, the justices left in place restrictions on the right to carry firearms in public in Maryland, Massachusetts and New Jersey. They also declined to review Massachusetts’ ban on “assault weapons” and ammunition magazines, a California handgun control law, and a federal law banning interstate handgun sales.
“Given the fact that the Supreme Court had a cafeteria-style menu of cases from which to choose, there is no excuse why the court at this time chose to ignore the need to rule on any of these cases, and send a message to lower courts that they can no longer thumb their noses at the Heller and McDonald Supreme Court decisions affirming the right to keep and bear arms,” said Alan Gottlieb, founder and executive vice president of the Second Amendment Foundation (SAF).
Justices Clarence Thomas and Neil Gorsuch wrote a dissent disagreeing with the Court’s decision to deny certiorari to a concealed carry case out of New Jersey.
Thomas, who has been the court’s most vocal critic of its silence on Second Amendment issues, pointed out that the lower courts have “systematically ignored” the Court’s holding in its landmark 2008 case, D.C. v. Heller. That case supposedly solidified the individual right to keep and bear arms, but lower courts have subsequently ignored or reinterpreted the Court’s ruling.
Rather than addressing these discrepancies, “the Court simply looks the other way,” Thomas says.
Thomas argues that the Court would immediately take up a case in which a state required a “good cause” to exercise First Amendment rights or to procure an abortion, as New Jersey does to exercise the right to bear arms.
“In several jurisdictions throughout the country, law-abiding citizens have been barred from exercising the fundamental right to bear arms because they cannot show that they have a ‘justifiable need’ or ‘good reason’ for doing so. One would think that such an onerous burden on a fundamental right would warrant this Court’s review,” Thomas says.
“With what other constitutional right would this Court allow such blatant defiance of its precedent? Whatever one may think about the proper approach to analyzing Second Amendment challenges, it is clearly time for us to resolve this issue” he adds.
The lower courts are split when it comes to many Second Amendment issues. Thomas points out, for example, that the D.C. Circuit Court has struck down “good cause” requirements for concealed carry while the First, Second, Third, and Fourth Circuits have upheld such licensing schemes.
Analysts have wondered for years why the court has refused to step in and settle these disputes. The prevailing theory is that Chief Justice John Roberts has refused to indicate whether he would uphold gun rights in any particular case. Without the assurance of a fifth vote, the four justices on the unofficial “conservative” block are hesitant to take a case and risk a loss.
If, for example, Roberts sided with the progressive block and upheld a state’s “good cause” requirement, there would be no stopping any state from implementing a similar licensing requirement.
“The Supreme Court’s refusal to take a Second Amendment Foundation case falls squarely at the feet of Chief Justice John Roberts,” Gottlieb said. “He owes every gun owner in the United States an explanation about why the high court declined to hear a number of important Second Amendment cases.”
There is still one more case pending cert before the high court that was filed by the SAF. It is known a Rodriguez v. San Jose, a firearms confiscation case out of the State of California.
Stay tuned for updates.