What the Supreme Court of the United States (SCOTUS) does NOT do can be as important as what it does. This week SCOTUS ruled … albeit by not ruling … that the Second Amendment is limited to possession of handguns in one’s home … but all other regulations are constitutional.
Back in 2008, SCOTUS issued the Heller decision, which held that the Second Amendment confers a personal right to bear arms. Two years later, SCOTUS ruled in the McDonald case that this right was applicable not just to the federal government, but States as well.
Those two cases were the last word from SCOTUS on the Second Amendment. Since then, lower courts have ruled upon various Second Amendment cases in ways that have effectively limited the scope of the Second Amendment merely to possessing a handgun in one’s home. From Justice Thomas’ dissent from SCOTUS’ decision in Rogers v. Grewal NOT to review such a lower court decision:
The text of the Second Amendment protects “the right of the people to keep and bear Arms.” We have stated that this “fundamental righ[t]” is “necessary to our system of or- dered liberty.” McDonald v. Chicago, 561 U. S. 742, 778 (2010). Yet, 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. 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. But today, faced with a petition challenging just such a restriction on citizens’ Second Amendment rights, the Court simply looks the other way.
This particular case involved whether the Second Amendment protects a right to public carry:
Petitioner Rogers is a law-abiding citizen who runs a business that requires him to service automated teller machines in high-crime areas. He applied for a permit to carry his handgun for self-defense. But, to obtain a carry permit in New Jersey, an applicant must, among other things, demonstrate “that he has a justifiable need to carry a handgun.” N. J. Stat. Ann. §2C:58–4(c) (West 2019 Cum. Supp.). For a “private citizen” to satisfy this “justifiable need” requirement, he must “specify in detail the urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun.” Ibid.; see also N. J. Admin. Code §13:54–2.4 (2020). “Generalized fears for personal safety are inadequate.” In re Preis, 118 N. J. 564, 571, 573 A. 2d 148, 152 (1990). Petitioner could not satisfy this standard and, as a result, his permit application was denied. With no ability to obtain a permit, petitioner is forced to operate his business in high-risk neighborhoods with no firearm for self-defense.
This case was just one of TEN Second Amendment cases SCOTUS let stand JUST THIS SESSION. From National Review (May 1, 2020):
Five of the petitions challenge various states’ “good reason” restrictions on the right to carry a weapon outside the home. Eight states issue carry permits provided that the applicant meets certain objective criteria (e.g. a criminal background check) as well as the vague subjective criterion that the applicant demonstrates a justified need to carry a firearm, often determined by a local sheriff. This has long been thought unconstitutional, and with good reason: No other constitutional right can be conditioned on the subjective determination of a local official. …
Another petition challenges California’s microstamping requirement, which requires new pistols to stamp the casing with an identifiable mark for better tracking. Problem is, no gun manufacturer has figured out how to do this. It’s akin to a law saying people have a right to free speech only if they’ve turned lead into gold.
There are also a couple of petitions challenging so-called “assault weapons” bans and high-capacity magazine restrictions, and a petition challenging the federal ban on interstate firearm sales, which for some reason irrationally applies to handguns but not rifles.
Josh Blackman, who blogs at the Volokh Conspiracy, summarized the current state of Second Amendment law this way:
And so it continues. Twelve years after Heller, we are in the exact same place. The government cannot ban the possession of handguns in the home, but all other gun control laws are reasonable. Keep in mind that only D.C. and Chicago banned handguns outright. Those rulings effected only those two laws. That’s it!
It only takes the votes of four justices for SCOTUS to accept an appeal. The speculation is that there are four such votes, but that these four … Justices Thomas, Alito, Gorsuch and Kavanaugh … decided NOT to force the issue because they believed that C.J. Roberts would vote with the liberal justices on the merits. From the Federalist:
These four associate justices could have voted to hear any of the 10 petitions, but not all four chose to bring the cases before the court. That’s telling in as much as it is disturbing. The fact that four justices who complained the court needed to hear Second Amendment cases passed on 10 chances to do so tells us much about the court’s “swing vote.”
One or more of the conservative justices are in essence telling us Roberts cannot be trusted to interpret the Second Amendment as written, or faithfully apply the precedents of the Heller and McDonald decisions. He ruled in the 5-4 majority in both those cases. …
The justices’ sudden silence speaks volumes. The Roberts court sees the Hellerand McDonald decisions as dead letters. It’s going to take a new justice to stand up for American rights. The next president and Senate will determine whether the Second Amendment will mean anything in America or whether it will continue to be treated as a constitutional orphan.
Needless to say, the Left is not going to tolerate even a watered-down Second Amendment. They are going to keep pushing the envelope until there is no longer even a constitutional right to possess a handgun in the home.
In the near term (we have no idea when the next Supreme Court vacancy occurs, or who will be filling that vacancy … or, even if appointed by Trump, whether that new Justice will turn out be another Roberts), the only way to protect the Second Amendment is through the political branches. However, given that the current polling suggests that it is likely we will see total Democrat control of the federal government … and I expect the Democrats to expand on their legislative majorities in the New Hampshire House and Senate … I wouldn’t advise putting off purchasing that firearm much longer.