It’s been a decade since the Supreme Court affirmed, in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), that the Second Amendment protects an individual and fundamental right, striking down laws that effectively prohibited the possession of handguns in one’s own home.
Since then, the court has routinely declined to address many questions left unanswered by these opinions. Lower courts have often taken advantage of that silence to erode the foundations of Heller and McDonald, upholding many gun control laws that seemed constitutionally dubious.
Many Second Amendment advocates were hopeful, however, when the Supreme Court granted certiorari in New York Rifle & Pistol Association v. City of New York last year to hear in this current term.
It appeared that the court was primed to issue its first significant Second Amendment ruling in 10 years and perhaps establish a legal framework that would help prevent future Second Amendment abuses.
Unfortunately, that was not to be. In a 6-3 decision, a majority of the justices essentially washed their hands of the case, sending it back down to the lower courts without ruling on the merits.
...This outcome is certainly disappointing to Second Amendment advocates, many of whom thought that if the court was going to dismiss the case as moot, it should have done so much earlier, allowing time to grant and hear another Second Amendment case this term.
As it stands, the earliest the court would hear another Second Amendment case, should it grant certiorari in one, is in its next term, which begins in October.
Importantly, many of the court’s pending Second Amendment cases were distributed for conference this week, meaning that the justices may soon discuss whether to grant certiorari in any of them.
Several of those cases would give the court ample opportunity to address very significant Second Amendment questions. They largely involve laws that state or local governments would likely be less eager to amend in order to avoid review.
For example, both Wilson v. Cook County, Illinois, and Worman v. Healey involve challenges to bans on so-called “assault weapons,” which are in reality semi-automatic firearms commonly owned by law-abiding citizens and used for lawful purposes.
Cases such as Rogers v. Grewal, out of New Jersey, and Malpasso v. Pallozzi, out of Maryland, would allow the court to review laws that limit concealed carry permits only to applicants who can show “good cause” above and beyond a general need for self-defense.
There is also Pena v. Horan, which challenges a California law requiring all new handguns sold in the state to be “microstamped” in a way that is not possible with current technology.
While it was disheartening to see the Supreme Court give in so easily to New York City’s legal antics, the pain would be very much salved should the justices immediately take up a new Second Amendment case that promises to address equally significant questions.
And from the Wall Street Journal editorial, "The Chief Justice Ducks on Gun Rights":
What an enormous abdication. The Supreme Court ducked its first Second Amendment case in a decade on Monday, and the only plausible explanation is that Chief Justice John Roberts wanted to avoid becoming a target of vengeful Senate Democrats.
...Rhode Island Senator Sheldon Whitehouse and four other Democrats also weighed in with an amicus brief threatening the Justices if they didn’t follow their orders to drop the case. “The Supreme Court is not well,” they wrote. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”
The majority buckled and ignored previous rulings to do it...
...But the Court’s timidity on gun rights amid Senate threats means that liberal and media intimidation will escalate. The Court hasn’t taken a Second Amendment case in a decade, even as cities and states erode its landmark Heller decision bit by bit. The Court is sending a signal that the Second Amendment is the exception in the Bill of Rights, a second-class freedom. “By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced,” Justice Alito warns. He’s right but too polite.
The Chief Justice is carving out a reputation as a highly political Justice whose views on the law can be coerced with threats to the Court’s “independence.” The danger for the Court is that, in bending to these threats, the Chief is compromising the very independence he claims to want to protect.
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