My Essay on Supreme Court’s Abandonment of Second Amendment Featured in Washington Post

June 22nd, 2014

My essay on the Supreme Court’s refusal to grant cert on any Second Amendment petitions since McDonald was featured in Bob Barnes’ column in WaPo.

If there are disagreements about the lesson from Abramski, there is no disputing the court’s pattern since Heller and a follow-up case two years later that made clear state and local governments must respect a fundamental right to gun ownership when passing gun-control laws.

“The justices seemingly have taken a vow of silence over the meaning of this fundamental right,” Josh Blackman, a constitutional-law professor at the South Texas College of Law, wrote in the American Spectator.

He said the court’s failure to take a case from sometimes conflicting rulings of lower courts amounts to “jurisdictional abdication of the Second Amendment,” which would allow the fundamental right the court found six years ago to “wither on the vine.”

The justices have declined to intervene in cases that upheld the most restrictive permitting procedures in states including Maryland, New York and New Jersey. The court was not enticed to review a federal law restricting the sale of handguns by federally licensed firearm dealers to those 21 and older.

It turned down a chance to review a Texas law allowing only those 21 and older to obtain a license to carry a weapon, despite a plea from veteran Supreme Court practitioner Paul D. Clement that lower courts were engaging in “massive resistance” to the Supreme Court’s landmark cases.

The closing quotation from my friend Alan Gura is right on point.

Even as some courts have upheld restrictive laws, states have loosened restrictions. Georgia, for instance, recently passed an expansive gun-rights law praised by the National Rifle Association.

Perhaps this is what the Supreme Court — or one particular justice — had in mind: tight restrictions in states that want them, easy access in others.

“I would hope not,” Gura said, “because that was very emphatically rejected” when the justices — again 5 to 4, again with Kennedy in the majority — said the right to individual gun ownership applied to state and local government gun control efforts. “Constitutional rights don’t mean different things in different states.”

The Second Amendment does not mean different things in different places, as I argued in this article.