Well, it has happened. Rather than the hoped-for clarification of the Second Amendment and the resolution of numerous Circuit Court splits, this morning the Supreme Court denied cert on all ten outstanding petitions in Second Amendment cases.
To no one’s surprise, Justice Thomas issued a scathing dissent in Rogers v. Grewal, pointing out once again how lower courts are simply disregarding Heller and MacDonald. He was joined in this dissent by Kavanaugh.
We thus know that there are four very solid pro 2A Justices on the Court, Thomas, Alito, Gorsuch, and Kavanaugh. That being the case, why were all these petitions denied (it only takes four votes to grant cert)? The only reason I case see for the Court’s reluctance to take another Second Amendment case is that they now fear – or know – that Chief Justice Roberts has gone wobbly.
We are thus back to the same situation we faced when Justice Anthony Kennedy was the swing vote. That means nothing is likely going to get be granted review because of the fear that Roberts would, as is becoming his custom, chicken out and vote to gut Heller and MacDonald. The pro-2A minority has made the calculation that it’s better to deny cert to these cases than to risk a decision that could adversely affect gun rights.
This situation will only embolden courts like the Ninth Circuit to continue to ignore the Heller decision.
Unless and until there’s a new justice on the Supreme Court, about the only way forward will be if a conservative circuit (such as the Fifth) takes a page from the left’s playbook and issues a sweeping pro-2A decision, knowing that the Supreme Court is paralyzed and will not act on it. Unfortunately, that’s not likely to happen.
Here’s the AP’s report:
The Supreme Court on Monday passed up several challenges to federal and state gun control laws, over the dissent of two conservative justices.
Gun rights advocates had hoped the court would expand the constitutional right to “keep and bear arms” beyond the home.
Instead, the justices left in place restrictions on the right to carry weapons in public in Maryland, Massachusetts and New Jersey. They also declined to review Massachusetts’ ban on some semi-automatic firearms and large-capacity ammunition magazines, a California handgun control law and a half-century-old federal law banning interstate handgun sales.
Justice Clarence Thomas, joined by Justice Brett Kavanaugh, wrote a dissent in the court’s denial of a New Jersey resident’s appeal seeking the right to carry a gun in public for self-defense. Rather than take on the constitutional issue, Thomas wrote, “the Court simply looks the other way.”