New Essay: OUR GUN-SHY JUSTICES – The Supreme Court abandons the Second Amendment.

June 17th, 2014

In the July issue of the American Spectator, I have an essay that chronicles the Supreme Court’s abdication of the Second Amendment since Heller and McDonald, through denial of certiorari on every single petition. The article is titled, “OUR GUN-SHY JUSTICES The Supreme Court abandons the Second Amendment.” Here is the Marquez-inspired introduction:

After two hundred years of solitude, the Second Amendment now means what it has always said: Our Constitution guarantees the people a right to keep and bear arms. But since McDonald v. City of Chicago, the Supreme Court’s landmark decision of 2010, the justices seemingly have taken a vow of silence on the meaning of this fundamental right.Over the last four years, in case after case, lower courts have accepted interpretations of the Second Amendment that have rendered it weak or nonexistent. Each time, a gun control scheme was found constitutional. Each time, once Second Amendment advocates reached the final request for appeal, the Supreme Court declined to review the ruling.With each additional attempt, a sense of déjà vu sets in, always with the same emptiness: “The petition for a writ of certiorari is denied.” There is no indication whether the lower courts are right or wrong, whether they have strayed from precedent or followed it faithfully. The Supreme Court, content with the status quo, has knowingly and willingly abandoned the Second Amendment to the judges below….

The Second Amendment is trapped somewhere between legal limbo and constitutional purgatory. 

In the article , I focus on 7 of the most high-profile cases that all challenged whether the Second Amendment applies outside the home—the logical follow-up to deciding that the Second Amendment protects a right to own a gun at home. Though the lower courts fractured about how to approach this issue, the Justices turned each appeal away.

  1. Williams v. Maryland (Md. 2010), cert denied on 10/3/11.
  2. United States v. Masciandaro (4th Cir. 2010), cert denied on 11/28/11
  3. Kachalsky v. Westchester County (2nd Cir. 2012), cert denied on 4/15/13.
  4. Woollard v. Gallagher (4th Cir. 2012), cert denied on 10/15/13.
  5. Chardin v. Police Commissioner of Boston (Mass. 2013), cert denied on 11/4/13.
  6. National Rifle Association v. McCraw (5th Cir. 2013), cert denied on 2/24/14.
  7. Drake v. Jerejian (3rd Cir. 2013), cert denied on 5/5/2014.

And, after the issue went to press, the Court denied Kwong v. DeBlasio (2nd Cir. 2013).

There is still hope, as the Peruta case from the 9th Circuit, currently pending en banc review, gives the Court one more, potentially last chance, to weigh on whether the Second Amendment applies outside the home. But, as I close in the article:

But if the Supreme Court denies review in Peruta, we may find ourselves running out of options. By ignoring this issue, the Court will have left the Second Amend- ment to wither on the vine. The right to keep and bear arms will be reduced to a hollow privilege in many states. Regardless of how the Court would resolve the tangled mess of lower precedents, the failure to even confront it, and rule on it, stands as a jur- isprudential abandonment of the Second Amendment.