EDITORIAL: What Second Amendment?

The Supreme Court punted—again—on the Second Amendment this week, declining to hear 10 gun-rights cases that had been teed up for possible review. At least Justice Clarence Thomas got in another sharp word about “this Court’s constitutional orphan,” as he once called it.
The Court heard arguments this term in a lawsuit over New York’s gun regulation, but in April a majority said that dispute was moot. Three Justices, in dissent, worried that the High Court’s Second Amendment precedents are being flouted by lower judges. Justice Brett Kavanaugh urged his colleagues to “address that issue soon.”
That same day the Court distributed 10 other gun-rights petitions for the Justices to consider taking. Granting a case requires four votes, so a reasonable inference was that they’d soon find another vehicle for a Second Amendment corrective. But on Monday all 10 cases were denied. Perhaps one or more of the conservative Justices feared that Chief Justice John Roberts would go wobbly, resulting in a Second Amendment defeat.
Whatever the internal dynamic, the result is a distinct lack of clarity about what the Constitution requires. One petition, in Rogers v. Grewal, was from a New Jersey man who said he “runs a large ATM business that causes him to frequently work in high-crime areas.” He sought a permit to carry a handgun and “met all of the eligibility and training requirements.” But in New Jersey, applicants have to show a “justifiable need,” meaning an “urgent necessity for self-protection, as evidenced by specific threats or previous attacks.” The appeals courts are split on whether such tests to carry a gun are allowed.
The High Court’s refusal to hear the case brought a dissent from Justice Thomas, joined in part by Justice Kavanaugh. “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,” he wrote. “But today, faced with a petition challenging just such a restriction on citizens’ Second Amendment rights, the Court simply looks the other way.”
Another rejected case, Worman v. Healey, challenged a Massachusetts ban on the possession of “assault weapons,” such as the popular AR-15 rifle. The Supreme Court has said that the Second Amendment protects arms in common use, but again lower courts are divided over what this means. “The record suggests,” the First Circuit Court of Appeals held in the Massachusetts case, “that wielding the proscribed weapons for self-defense within the home is tantamount to using a sledgehammer to crack open the shell of a peanut.”
Is the Second Amendment limited to a hand gun in the home? It’s a reasonable question. If the Supreme Court is too gun-shy to answer, then Americans will watch as Justice Antonin Scalia’s landmark opinion, D.C. v. Heller(2008), is slowly hollowed out by politicians and liberal judges.

WSJ