The United States Supreme Court declined to hear several cases related to Second Amendment cases yesterday. The National Rifle Association, the Second Amendment Foundation and the National Shooting Sports Foundation took notice, and exception to the inaction. We have rounded up their reactions below and encourage you to read them all.
The Bill of Rights specifically includes the right to keep and bear arms because self-defense is fundamental to the liberty of a free society. Today’s inaction continues to allow so-called gun safety politicians to trample on the freedom and security of law-abiding citizens. This fight is not over for the NRA.
The following is a statement from Alan M. Gottlieb, founder and executive vice president of the Second Amendment Foundation, on the U.S. Supreme Court’s refusal to accept a Second Amendment case for review.
“The Supreme Court’s refusal to take a Second Amendment Foundation case falls squarely at the feet of Chief Justice John Roberts.
“He owes every gun owner in the United States an explanation about why the high court declined to hear a number of important Second Amendment cases.
“Given the fact that the Supreme Court had a cafeteria-style menu of cases from which to choose, there is no excuse why the court at this time chose to ignore the need to rule on any of these cases, and send a message to lower courts that they can no longer thumb their noses at the Heller and McDonald Supreme Court decisions affirming the individual right to keep and bear arms.
“There is still one more case pending cert before the high court that was filed by the SAF. It is known as Rodriguez v. San Jose, a firearms confiscation case out of the State of California.”
The National Shooting Sports Foundation released a couple of different articles. The first excerpt is from a piece written by Larry Keane titled, “SCOTUS Frustrates Again on Second Amendment Rights”:
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.”
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.”
The other piece from the National Shooting Sports Foundation is titled, “Firearm Industry Dissapointed by U.S. Supreme Court’s Refusal to Accept Second Amendment Cases”:
NSSF, the firearm industry trade association, expressed profound disappointment and frustration by the U.S. Supreme Court’s refusal to accept any of nearly a dozen Second Amendment-related appeals.
The Supreme Court requires just four justices to agree to hear an appeal at the nation’s highest court. Four justices, including Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh have all expressed concern over the court’s decade long unwillingness to address infringements on Second Amendment rights. Justice Thomas previously noted, “…the Second Amendment is a disfavored right in this Court.” That pattern has not altered with today’s petition denials. Justice Thomas, again, drew attention to this fact in his dissent.
“But today, faced with a petition challenging just such a restriction on citizens’ Second Amendment rights, the Court simply looks the other way,” Justice Thomas wrote in his dissent.
The NSSF filed amicus briefs on two of the cases denied by the Supreme Court. Those cases, Worman v Healey and Mance v Barr, centered on fundamental right to keep and bear arms. The Supreme Court’s denials in Worman and Mance let stand Massachusetts’ ban on commonly-owned modern sporting rifles and a ban on the sale of handguns across state lines. No other fundamental constitutional right ends at a state’s border. The Court also denied Pena v Horan, a challenge to California’s Unsafe Handgun Act that bans handguns in common use for lawful purposes, that the firearm industry trade association was closely monitoring.
“The court is ignoring its’ own precedent and the willful ignorance of lower courts to apply precedence of the landmark 2008 Heller and 2010 McDonald decisions,” Keane explained. “Heller protected the pre-existing common law individual rights to possess and carry on your person firearms that are in ‘common use.’ Nearly 18 million modern sporting rifles are in circulation today, used for lawful purposes daily, including recreational target shooting, hunting and self-defense. McDonald found that Second Amendment rights are enforceable against states seeking to deny those rights of law-abiding citizens. As several Justices have written in recent years, both precedents are being badly misinterpreted by the lower appellate courts, or as Justice Thomas at least believes blatantly ignored. Now, a dozen years since Heller, it is abundantly clear the Roberts-led Supreme Court is allowing the Second Amendment to be treated as a ‘constitutional orphan.’”