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.
Unanswered Questions
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.
I look forward to hearing from one or more of your contributors concerning the latest appointment to the SCOTUS and what her WAY will look like when Second Amendment cases do come before it. Will she be middle-of-the-road, or an originalist, or one of those who thinks that “self evident truth” changes every couple of hundred years. And while as an educator I know that some people are working on it, I’m still waiting to see when not higher but lower principles–say the principles of addition and equality (+ and =) will suddenly transform and 2 + 2 will start to equal 5. For if we find out that lower principles never change, how is it that Higher Principles, “self evident truths” do? Has the Principle taught by both Jesus and by confucius changed? Is the Teaching that one should “do unto others as one would have them do unto you” become irrelevant because some unseen change has come into the metaphysical structure of the Universe? And if that happened, who documented it, and what scientific papers were written on it?
And here’s another question: If the First Amendment is in part about freedom of conscience, why don’t our schools cultivate conscience instead of a bunch of ethical morons and malleable sheep who, one might argue, would be in need of a bunch of police to tell them what is right and what is wrong?
Another question: In school we study subjects that are in fact higher things: History, Politics, Literature, etc., but if those are taught via the mind-numbing method of “memorization and regurgitation” will our students come out of those classes actually UNDERSTANDING anything that is actually “Higher?” Is the student who knows the names of famous generals, but not general principles, be thought of as wise? Or would stupid be a better word? “Facts are stupid things until brought into relations with general laws.” (Louis Agassiz)
JWC
In very recent, SCOTUS has shown that it’s not about OUR Constitution but rather politics. Not all of the justices, but five of them. They just did again yesterday when President Trump tried to use HIS Executive Order to remove one of the last presidents executive orders that very specifically made something regarding illegal immigration…legal, overriding actual laws written by previous Congress’ and signed into law by previous presidents. Executive Orders are not supposed to override existing law. The Chief Justice, John Roberts admitted as much and then said that he disagreed with how President Trump tried to override a past president’s illegal executive order by simply trying to override it. Our nation’s framers and founding fathers were very wise when they thought out and wrote OUR Constitution and then offered the first Amendments to it as corrections that they saw needed to be made. Unfortunately for us none of them had the insight to foresee or predict Chief Justice John Roberts or his consistency in finding OUR Constitution to be unconstitutional.
Either the US Constitution is the supreme law of the land, or is it not, when it comes to the 2A. Especially in these times of national turmoil, the people are tired of being treated like fools when the elected lawmakers do not obey the Constitution while pretending they know best that everything is going to be alright.
The people need only to look around them in order to understand how badly they are being lied to, as their God-given rights are being infringed or taken away. People are entirely fed up with false promises and platitudes.
I believe a day of reconning will soon be upon us, as a nation who let freedom slip through their fingers, never to return again.
How naive is it to not realize that politically appointed Justices are to varying extent ‘politically motivated’? Would a President nominate someone whose politics directly oppose his?
And too many focus on the fact that the cases were denied, but not the why: We have four theoretically ‘Constitutional’ Justices, four who hate the document, and one who resembles nothing more than a wind vane in a tornado. Rather than a crapshoot, the only reasonable alternative is to keep a President who will (probably) appoint one or two Constitutional conservatives and ensure more favorable ‘opinions’ from the Bench. Of course, in this age of instant gratification most fail to comprehend even the theory of ‘taking the long view’…
If the juries in those trials stepped up we wouldn’t need SCOTUS to be in that position. Those juries either have been compromised or weak. The jury decides on the law as well as the facts. And the 2nd Amendment is quite clear.
Sounds to me as if someone or or more was paid off.