This month the American Spectator published my essay, “Our Gun-Shy Justices: The Supreme Court Abandons the Second Amendment” about the Supreme Court’s refusal to take any Second Amendment cases since McDonald. I included excerpts here.
My friend Adam Winkler has written a piece along the same lines at Slate, titled “Gun Shy: What happened to the Second Amendment at the U.S. Supreme Court this year?” (Adam told me he didn’t select the headline).
Even as Second Amendment battles heat up in legislatures across the country—exemplified by Georgia’s recently adopted “guns everywhere” law permitting firearms in churches, bars, and airports—the Supreme Court refused to enter the fray. The justices declined to hear appeals in several Second Amendment cases this year. They turned away a case out of New Jersey on the constitutionality of discretionary permitting for concealed carry. They steered clear of a case challenging Texas’ ban on concealed carry by people under 21. And they denied cert in another case contesting the federal law banning gun dealers from selling handguns to people under 21.
Were the justices having second thoughts about the Second Amendment? One thing is certain: There were very strong reasons for the court to take a Second Amendment case this term. The court’s previous decisions left open two major questions: Does the Second Amendment protect the right of people to carry guns in public? And what test should courts use generally to determine the constitutionality of gun restrictions?
These questions have bedeviled the lower courts over the past few years, with judges all across the country offering contradictory answers. One federal appeals court held that police can exercise broad discretion over who can carry a gun in public, while another held the opposite. Some courts have adopted a test for Second Amendment cases that gives lawmakers considerable leeway to enact gun laws, while others have insisted on a more strict scrutiny. In some ways, the current Supreme Court jurisprudence on guns raised as many questions as it answered.
Such disagreement in the lower courts is usually the best predictor of whether the Supreme Court takes a case. The justices understand the nation’s need for uniformity, especially when it comes to individual rights. This term, however, the justices weren’t inclined to sort out any such inconsistencies involving the Second Amendment. Indeed, when expressly invited to wade in, they balked.
Über Supreme Court advocate Paul Clement, at the top of the shortlist of high-court nominees should the GOP recapture the White House in 2016, tried to goad the justices into taking a Second Amendment case. In a brief he filed on behalf of the National Rifle Association in the gun dealer case, Clement argued that the lower courts have engaged in a “pervasive pattern of stubborn resistance to this Court’s holdings” in the earlier gun cases. This language evoked the notorious “massive resistance” of Southern states to the court’s school desegregation decisions. Like the NAACP before him, he and the NRA were looking for the court to issue a clear, strong command to lower courts to read the Second Amendment broadly.
No thanks, said the court, declining to take the case. Indeed, the NRA may have been this term’s biggest loser. Not only did the court refuse to hear Clement’s case and another brought by the nation’s leading gun rights group, but it also rejected the NRA’s position outright in the straw-purchaser case just decided. In March, the court held in another case that a law banning guns to people convicted of misdemeanor crimes of “domestic violence” applied to those convicted of domestic “assault,” even if it was unclear that the assault involved violent force. Although the NRA didn’t take an official position in that case, many in its leadership were surely unhappy to see another Supreme Court ruling broadly reading a gun control law to reduce access to guns.
Adam says what I hinted at. That Justice Kennedy may be content to leave the Second Amendment to wither on the vine.
NRA disappointment might well turn into despair after Monday’s ruling, as Justice Anthony Kennedy, the court’s swing vote on the Second Amendment and so many other issues, sided with gun control advocates and the court’s liberal wing. It’s long been suspected that Kennedy signed on to the earlier Second Amendment rulings by the court only after language was inserted allowing for reasonable restrictions on guns. But the question has lingered: How far would Kennedy allow gun control to go?
That question might well have been on the minds of the other justices when they voted not to hear a Second Amendment case this year. With four justices likely in favor of broad Second Amendment rights and another four likely opposed, the scope of the right to bear arms turns on Kennedy. His views may have been sufficiently unclear that neither side wanted to take a risk of a landmark decision coming out the wrong way.
If, however, this term is any indication, Kennedy seems increasingly less likely to be a solid vote for expansive Second Amendment rights. Indeed, twice this term he voted for expansive readings of gun control laws instead. For the NRA, so used to winning in statehouses around the country, this can’t be good news. After this term, the NRA may be hoping that the Second Amendment stays out of the Supreme Court for a good, long while.
As much as I agree with Adam, this state of Second Amendment limbo is less desirable than a clear resolution of the issue.