WHAT WILL BECOME OF U.S. SUPREME COURT HELLER AND MCDONALD PRECEDENT?
Commentators and readers—pro, con, or ostensibly neutral toward the Second Amendment—presume the U.S. Supreme Court will soon take up, on review, one or more of the several pending Second Amendment cases awaiting a vote by the Court. But will they?
“We expect orders from Friday’s conference on Monday, May 4, at 9:30 a.m. EDT.
Mance v. Barr – Whether the federal ban on interstate handgun sales violates the Second Amendment or the due process clause of the Fifth Amendment.
Rogers v. Grewal – In a challenge to New Jersey’s handgun carry permit scheme, whether the Second Amendment protects the right to carry a handgun outside the home for self-defense; and whether the government can condition the right to carry a handgun outside the home on the showing of a special need to carry a firearm.
Pena v. Horan – In a challenge to a California law banning most commonly used handguns, the petition asks the justices to weigh in on the scope of the Second Amendment.
Gould v. Lipson – In a challenge to Massachusetts’ handgun carry permit scheme, whether the Second Amendment protects the right to carry a handgun outside the home for self-defense; and whether the government can condition the right to carry a handgun outside the home on the showing of a special need to carry a firearm.
Cheeseman v. Polillo – Challenge to New Jersey handgun carry permit scheme.
Ciolek v. New Jersey – Challenge to New Jersey handgun carry permit scheme.
Worman v. Healey – Challenge to Massachusetts ban on the possession of assault weapons and large-capacity magazines.
Malpasso v. Pallozzi – In a challenge to Maryland’s handgun carry permit scheme, whether the Second Amendment protects the right to carry handguns outside the home for self-defense.
Culp v. Raoul – Whether the Second Amendment requires Illinois to allow nonresidents to apply for a concealed-carry license.
Wilson v. Cook County – Challenge to Cook County’s ban on assault rifles and large-capacity magazines, as well as to the Second Amendment analysis used by the U.S. Court of Appeals for the 7th Circuit to uphold the ban.
This post was originally published at Howe on the Court.”
But, as of the posting of Part Five of this multi-series article on the Arbalest Quarrel, AQ has not yet heard whether the High Court will be reviewing any of the aforesaid cases, even as CNBC News reported, on Sunday, May 17, 2020, that,
“The Supreme Court is looking eager to weigh in on the Second Amendment weeks after it punted on its first substantial gun rights case in nearly a decade.”
Eagerly looking forward to weighing in on a Second Amendment case? Really?
Well, apart from Associate Justice Clarence Thomas, Associate Justice Neil Gorsuch, who had previously written or joined dissenting comments asserting strong displeasure for the failure of the Court to take up any one of several cases, to date—and, we presume, apart from Associate Justice Samuel Alito who had penned the McDonald majority opinion, and Associate Justice Brett Kavanaugh, who had penned the dissenting opinion in Heller II when he had served as a Judge on the U.S. Court of Appeals for the District of Columbia Circuit, before joining the U.S. Supreme Court as an Associate Justice—the idea that the liberal wing of the High Court and the idea that the Chief Justice, himself, John Roberts, also relish the opportunity to review any Second Amendment case, except to rein in the fundamental, natural, immutable, unalienable right of the people to keep and bear arms, if they have the opportunity to do so, is a bit of a stretch. The only other Justice who would, if he could, had a strong desire to review another Second Amendment case would be the late eminent Associate Justice, Antonin Scalia, who had penned the majority opinion Heller rulings and holdings.
The U.S. Supreme Court has had many opportunities to do so since the Court’s majority handed down the seminal rulings in the 2008 Heller and the 2010 McDonald cases. But, apart from the quasi Second Amendment Voisine case and the recent New York City Gun transport case, the Court never did review a Second Amendment case.
Concerning those two cases, Justice Thomas remarked of the former, that, while the Court did review Voisine, it never did address the Second Amendment issue, which might explain why the Court decided to hear the case at all. And, as for the latter—the New York City gun transport case—the High Court’s majority, comprising the Anti-Second Amendment liberal wing, along with Chief Justice Roberts, and, surprisingly, Associate Justice Kavanaugh, the recent addition to the Court, both ruled against allowing the case to proceed to the merits.
Can Americans be so certain that another Second Amendment case is going to be taken up soon? Consider how many writs of certiorari come before the High Court during any term.
On the U.S. Supreme Court site, supremecourt.gov, we are told:
“The Term of the Court begins, by law, on the first Monday in October and lasts until the first Monday in October of the next year. Each Term, approximately 7,000-8,000 new cases are filed in the Supreme Court. This is a substantially larger volume of cases than was presented to the Court in the last century. In the 1950 Term, for example, the Court received only 1,195 new cases, and even as recently as the 1975 Term it received only 3,940. Plenary review, with oral arguments by attorneys, is currently granted in about 80 of those cases each Term, and the Court typically disposes of about 100 or more cases without plenary review. The publication of each Term’s written opinions, including concurring opinions, dissenting opinions, and orders, can take up thousands of pages. During the drafting process, some opinions may be revised a dozen or more times before they are announced.”
Do you honestly think one of the pending Second Amendment cases will garner the four votes necessary for the U.S. Supreme Court to review it, and relatively soon?
With a clear schism between, on the one hand, the entrenched liberal-wing of the High Court that detests any notion of a God-given, fundamental, immutable, unalienable, natural right of the people to keep and bear arms, and vehemently disagrees with the majority’s rulings in Heller and McDonald, and, on the other hand, the entrenched conservative-wing Constitutionalists of the High Court, consisting of Associate Justices Thomas, Alito, and Gorsuch who are adamant in their desire to preserve the Second Amendment as the framers of the U.S. Constitution had intended, it is to be seen whether Americans will henceforth be able to continue to own and possess firearms as a fundamental and unalienable right, rather than as a mere Government privilege. It will all come down to how Chief Justice Roberts and Associate Justice Kavanaugh decide any such Second Amendment case.
Keep in mind, it only takes one vote, either Roberts or Kavanaugh, to rule with the liberal wing of the High Court to affirm the rulings of U.S. Circuit Court of Appeals that upheld unconstitutional government actions, counter to the rulings of Heller and McDonald, striking a flagrant blow to Supreme Court precedent. But, it takes two votes, both Roberts and Kavanaugh joining the conservative-wing, to reverse or, otherwise, to modify, or vacate and remand, a badly decided lower court ruling.
Our guess is that, with a U.S. Presidential election approaching this year, which will, as well, also decide whether Democrats maintain majorities in the House and secure a majority in the Senate, the U.S. Supreme Court would prefer to await the outcome.
If Democrats win the Presidency and take control of the Senate, the liberal wing of the Court may be willing to provide the four votes necessary to hear a Second Amendment case. The liberal wing of the Court would do so not to chastise the Federal Circuits for failing to adhere to Heller and McDonald precedent, but to overturn those precedents, or, at least, to weaken Heller and McDonald, as they always took the position that the majority had wrongly decided Heller and McDonald.
Of course, if the four members of the liberal wing of the Court do decide to vote in favor of reviewing a Second Amendment case, it would do so only if they feel confident they would obtain a “conservative” wing majority, meaning that both Chief Justice Roberts and Associate Justice Kavanaugh must join Justices Thomas, Alito, and Gorsuch, to reverse outright a Circuit Court of Appeals decision that upheld a government action infringing the core of the Second Amendment.
But, whatever the High Court decides to do with this new batch of Second Amendment cases, it behooves us to take a moment and proceed down memory lane to contemplate those cases the Court could have reviewed, should have reviewed, but failed to secure even four of nine votes necessary to review a case implicating the core of the Second Amendment: cases decided by U.S. Circuit Courts of Appeals that blatantly, defiantly, arrogantly, egregiously denied and defied Heller and McDonald precedent.
CASES ATTACKING THE CORE OF THE SECOND AMENDMENT THAT THE U.S. SUPREME COURT REFUSED TO HEAR
Because the U.S. Circuit Court of Appeals, in cases discussed infra, had blatantly ignored and dismissed Heller and McDonald precedent, Justice Thomas and the late Justice Scalia, and, later, Justice Gorsuch, were visibly annoyed, angered really, at the failure of the High Court to take up any of the cases, as evidenced in several dissenting comments.
Those Justices were confident that, had any one or more of the below cases secured the four votes necessary for a Second Amendment case to be heard, Justice Roberts, and, at the time Justice Kennedy, would have been compelled to join the Conservative wing, reversing the decision of the Circuit Court.
Chief Justice Roberts and Justice Kennedy would have been required to join the conservative wing even if they had a predilection against doing so, based on their own obvious lukewarm regard for the Second Amendment of the Bill of Rights to the U.S. Constitution. They would have had to overturn any U.S. Circuit Court of Appeals’ decision that clearly attacked the core of the Second Amendment, as the below cases attest to. They would have been obliged to do so, consistent with Heller and McDonald precedent, and, more particularly, consistent with those Justices own decisions in Heller and McDonald, having joined the majority in those decisions. And, given that imperative, they evidently decided to take the “safer” course of action. They refused to hear any one of those cases.
These cases include:
Silvester vs. Becerra: Petition for certiorari denied on February 20, 2018
“Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit improperly applied lenient scrutiny in a Second Amendment challenge to the application of California’s full 10-day waiting period to firearm purchasers who pass their background check in fewer than 10 days and already own another firearm or have a concealed carry license; and (2) whether the Supreme Court should exercise its supervisory powers to cabin the U.S. Court of Appeals for the 9th Circuit’s concerted resistance to and disregard of the Supreme Court’s Second Amendment decisions.”
California’s full 10-day waiting period to firearm purchasers remains in effect
Justice Thomas was livid:
“Justice Clarence Thomas asserted the Second Amendment is ‘a disfavored right’ in the U.S. Supreme Court when he dissented Tuesday from the denial of certiorari in a gun case.
Thomas said the Supreme Court should have heard Silvester v. Becerra, a challenge to California’s 10-day waiting period for gun purchases. His dissent starts on the 34th page of the Supreme Court order list.
In upholding the law, the San Francisco-based 9th U.S. Circuit Court of Appeals used rational basis review, though it claimed to be using intermediate scrutiny, Thomas said.
‘If a lower court treated another right so cavalierly, I have little doubt that this court would intervene,” Thomas wrote. “But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this court.’”
In his dissent for failure of the high Court to hear the case, Justice Thomas said with particularity and with righteous indignation:
The Second Amendment protects “the right of the people to keep and bear Arms,” and the Fourteenth Amendment requires the States to respect that right, McDonald v. Chicago, 561 U. S. 742, 749-750, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010) (plurality opinion); id., at 805, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (Thomas, J., concurring in part and concurring in judgment). Because the right to keep and bear arms is enumerated in the Constitution, courts cannot subject laws that burden it to mere rational-basis review. District of Columbia v. Heller, 554 U. S. 570, 628, n. 27, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).
But the decision below did just that. Purporting to apply intermediate scrutiny, the Court of Appeals upheld California’s 10-day waiting period for firearms based solely on its own ‘common sense.’ Silvester v. Harris, 843 F. 3d 816, 828 (CA9 2016). It did so without requiring California to submit relevant evidence, without addressing petitioners’ arguments to the contrary, and without acknowledging the District Court’s factual findings. This deferential analysis was indistinguishable from rational-basis review. And it is symptomatic of the lower courts’ general failure to afford the Second Amendment the respect due an enumerated constitutional right.
If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court. Because I do not believe we should be in the business of choosing which constitutional rights are “really worth insisting upon,” Heller, supra, at 634, 128 S. Ct. 2783, 171 L. Ed. 2d 637, I would have granted certiorari in this case.
Drake v. Jerejian: Petition for certiorari denied on May 5, 2014
No hearing; no comment
“Issue: (1) Whether the Second Amendment secures a right to carry handguns outside the home for self-defense; and (2) whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self-defense first prove a ‘justifiable need’ for doing so.”
“Well it’s official. The Supreme Court has abdicated the Second Amendment.
No Second Amendment right, in New Jersey, to carry a handgun outside the home; and proof of “justifiable need” to carry handgun outside the home for self-defense remains in effect in New Jersey
“Today, the Court denied cert in Drake v. Jerejian, the New Jersey carry case. This case offered a perfect vehicle to test whether the Second Amendment applies outside the home. It was relisted a few times, which this term has been a prerequisite to cert. Yet, it was denied today.
Since the Supreme Court decided McDonald v. Chicago in 2010, they have not deigned to take a single Second Amendment case. Not one. Several have been relisted a few times, but all ultimately denied, with not even a statement concurring or dissenting from denial of cert.
As I noted in this post, this strategy of ‘deny, deny, deny’ is reminiscent of the absence of Cert grants in cases concerning Guantanamo Bay. There, the Court seems content to let the D.C. Circuit rewrite habeas law. I suppose, in a similar fashion, the Court is happy with a plethora of nation-wide Circuit splits about the meaning of the right to keep and bear arms.”
Jackson vs. City & Cnty. of San Francisco: Petition for certiorari denied on June 8, 2015
“Issue: Whether San Francisco’s attempt to deprive law-abiding individuals of immediate access to operable handguns in their own homes is any more constitutional than the District of Columbia’s invalidated effort to do the same.”
Requirement to keep handguns inaccessible in home remains in effect in San Francisco.
(Thomas dissenting; Scalia joins dissent) Thomas with righteous indignation, writes:
“‘Self-defense is a basic right’ and ‘the central component’ of the Second Amendment’s guarantee of an individual’s right to keep and bear arms. McDonald v. Chicago 561 U. S. 742, 767, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010) (emphasis deleted). Less than a decade ago, we explained that an ordinance requiring firearms in the home to be kept inoperable, without an exception for self-defense, conflicted with the Second Amendment because it ‘ma[de] it impossible for citizens to use [their firearms] for the core lawful purpose of self-defense.’ District of Columbia v. Heller, 554 U. S. 570, 630, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). Despite the clarity with which we described the Second Amendment core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it. Because Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document, I would have granted this petition.”
Friedman vs. City of Highland Park, Illinois:Petition for certiorari denied on December 7, 2015
“Issue: (1) Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with a class of constitutionally protected ‘arms’ that includes the most popular rifles in the nation; and (2) whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with ammunition magazines that number in the tens of millions and make up nearly half of the nation’s total stock of privately owned ammunition magazines for handguns and rifles.
Semiautomatic weapons defined as ‘assault weapons,’ even if in common use remain illegal in City of Highland Park, Illinois
“The City of Highland Park, Illinois, bans manufacturing, selling, giving, lending, acquiring, or possessing many of the most commonly owned semiautomatic firearms, which the City branded “Assault Weapons.” See Highland Park, Ill., City Code §§136.001(C), 136.005 (2015), App. to Pet. for Cert. 65a, 71a. For instance, the ordinance criminalizes modern sporting rifles (e.g., AR-style semiautomatic rifles), which many Americans own for lawful purposes like self-defense, hunting, and target shooting. The City also prohibited “Large Capacity Magazines,” a term the City used to refer to nearly all ammunition feeding devices that “accept more than ten rounds.” §136.001(G), id., at 70a.
The City gave anyone who legally possessed ‘an Assault Weapon or Large Capacity Magazine’ 60 days to move these items outside city limits, disable them, or surrender them for destruction. §136.020, id., at 73a. Anyone who violates the ordinance can be imprisoned for up to six months, fined up to $1,000, or both. §136.999, id., at 74a.
Petitioners — a Highland Park resident who sought to keep now-prohibited firearms and magazines to defend his home, and an advocacy organization — brought a suit to enjoin the ordinance on the ground that it violates the Second Amendment. The District Court for the Northern District of Illinois granted summary judgment to the City.
A divided panel of the Seventh Circuit affirmed. The panel majority acknowledged that the prohibited weapons ‘can be beneficial for self-defense because they are lighter than many rifles and less dangerous per shot than larger-caliber pistols or revolvers,’ and thus ‘[h]ouseholders too frightened or infirm to aim carefully may be able to wield them more effectively.’ 784 F. 3d, at 411.
The majority nonetheless found no constitutional problem with the ordinance. It recognized that Heller ‘holds that a law banning the possession of handguns in the home . . . violates’ the Second Amendment. 784 F. 3d, at 407. But beyond Heller’s rejection of banning handguns in the home, the majority believed, Heller and McDonald ‘leave matters open’ on the scope of the Second Amendment. 784 F. 3d, at 412. The majority thus adopted a new test for gauging the constitutionality of bans on firearms: ‘[W]e [will] ask whether a regulation bans weapons that were common at the time of ratification or those that have some reasonable relationship to the preservation or efficiency of a well regulated militia, . . . and whether law-abiding citizens retain adequate means of self-defense.’ Id., at 410 (internal quotation marks omitted).
Judge Manion dissented, reasoning that ‘[b]oth the ordinance and this court’s opinion upholding it are directly at odds with the central holdings of Heller and McDonald.’ Id., at 412.
We explained in Heller and McDonald that the Second Amendment ‘guarantee[s] the individual right to possess and carry weapons in case of confrontation.’ Heller, supra, at 592, 128 S. Ct. 2783, 2797, 171 L. Ed. 2d 637, 657; see also McDonald, supra, at 767-769, 130 S. Ct. 3020, 3036-3037, 177 L. Ed. 2d 894, 914-916. We excluded from protection only ‘those weapons not typically possessed by law-abiding citizens for lawful purposes.’ Heller, 554 U. S., at 625, 128 S. Ct. 2783, 2815, 171 L. Ed. 2d 637, 677. And we stressed that ‘[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.’ Id., at 634, 128 S. Ct. 2783, 2821, 171 L. Ed. 2d 637, 682 (emphasis deleted).
Instead of adhering to our reasoning in Heller, the Seventh Circuit limited Heller to its facts, and read Heller to forbid only total bans on handguns used for self-defense in the home. See 784 F. 3d, at 407, 412. All other questions about the Second Amendment, the Seventh Circuit concluded, should be defined by ‘the political process and scholarly debate.’ Id., at 412.
But Heller repudiates that approach. We explained in Heller that ‘since th[e] case represent[ed] this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.’ 554 U. S., at 635, 128 S. Ct. 2783, 2821, 171 L. Ed. 2d 637, 683. We cautioned courts against leaving the rest of the field to the legislative process: ‘Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.’ Id., at 634-635, 128 S. Ct. 2783, 2821, 171 L. Ed. 2d 637, 683.
Based on its crabbed reading of Heller, the Seventh Circuit felt free to adopt a test for assessing firearm bans that eviscerates many of the protections recognized in Heller and McDonald. The court asked in the first instance whether the banned firearms ‘were common at the time of ratification’ in 1791. 784 F. 3d, at 410. But we said in Heller that ‘the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.’ 554 U. S., at 582, 128 S. Ct. 2783, 2792, 171 L. Ed. 2d 637, 651.
The Seventh Circuit alternatively asked whether the banned firearms relate ‘to the preservation or efficiency of a well regulated militia.’ 784 F. 3d, at 410 (internal quotation marks omitted). The court concluded that state and local ordinances never run afoul of that objective, since ‘states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade firearms.’ Ibid. But that ignores Heller’s fundamental premise: The right to keep and bear arms is an independent, individual right. Its scope is defined not by what the militia needs, but by what private citizens commonly possess. 554 U. S., at 592, 627-629, 128 S. Ct. 2783, 2797, 2817-2818, 171 L. Ed. 2d 637, 657, 678-680. Moreover, the Seventh Circuit endorsed the view of the militia that Heller rejected. We explained that ‘Congress retains plenary authority to organize the militia,” not States. Id., at 600, 128 S. Ct. 2783, 2802, 171 L. Ed. 2d 637, 662 (emphasis added). Because the Second Amendment confers rights upon individual citizens—not state governments—it was doubly wrong for the Seventh Circuit to delegate to States and localities the power to decide which firearms people may possess.
Lastly, the Seventh Circuit considered ‘whether law-abiding citizens retain adequate means of self-defense,’ and reasoned that the City’s ban was permissible because ‘[i]f criminals can find substitutes for banned assault weapons, then so can law-abiding homeowners.” 784 F. 3d, at 410, 411. Although the court recognized that ‘Heller held that the availability of long guns does not save a ban on handgun ownership,’ it thought that ‘Heller did not foreclose the possibility that allowing the use of most long guns plus pistols and revolvers . . . gives householders adequate means of defense.’ Id., at 411.
That analysis misreads Heller. The question under Heller is not whether citizens have adequate alternatives available for self-defense. Rather, Heller asks whether the law bans types of firearms commonly used for a lawful purpose—regardless of whether alternatives exist. 554 U. S., at 627-629, 128 S. Ct. 2783, 2817-2818, 171 L. Ed. 2d 637, 678-680. And Heller draws a distinction between such firearms and weapons specially adapted to unlawful uses and not in common use, such as sawed-off shotguns. Id., at 624-625, 128 S. Ct. 2783, 2815-2816, 171 L. Ed. 2d 637, 676-677. The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes. Roughly five million Americans own AR-style semiautomatic rifles. See 784 F. 3d, at 415, n. 3. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. See ibid. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons. See McDonald, 561 U. S., at 767-768, 130 S. Ct. 3020, 3036-3037, 177 L. Ed. 2d 894, 914-915; Heller, supra, at 628-629, 128 S. Ct. 2783, 2817-2818, 171 L. Ed. 2d 637, 679-680.
The Seventh Circuit ultimately upheld a ban on many common semiautomatic firearms based on speculation about the law’s potential policy benefits. See 784 F. 3d, at 411-412. The court conceded that handguns — not ‘assault weapons’ — ‘are responsible for the vast majority of gun violence in the United States.’ Id., at 409. Still, the court concluded, the ordinance ‘may increase the public’s sense of safety,’ which alone is ‘a substantial benefit.’ Id., at 412. Heller, however, forbids subjecting the Second Amendment’s ‘core protection . . . to a freestanding ‘interest-balancing’ approach.’ Heller, supra, at 634, 128 S. Ct. 2783, 2821, 171 L. Ed. 2d 637, 683. This case illustrates why. If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing.
The Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions. E.g., Maryland v. Kulbicki, ante, at 1 (per curiam) (summarily reversing because the court below applied Strickland v. Washington, 466 U. S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), ‘in name only’); Grady v. North Carolina, 575 U. S. ___ , 135 S. Ct. 1368, 191 L. Ed. 2d 459 (2015) (per curiam) (summarily reversing a judgment inconsistent with this Court’s recent Fourth Amendment precedents); Martinez v. Illinois, 572 U. S. ___, ___ , 134 S. Ct. 2070, 2077, 188 L. Ed. 2d 1112, 1120 (2014) (per curiam) (summarily reversing judgment that rested on an ‘understandable’ double jeopardy holding that nonetheless ‘r[an] directly counter to our precedents”).
There is no basis for a different result when our Second Amendment precedents are at stake. I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.
Kolbe vs. Hogan: Petition for certiorari denied on November 27, 2017
No hearing and no comment
Issues: (1) Whether District of Columbia v. Heller excludes the most popular semiautomatic rifles and magazines from Second Amendment protection; and (2) whether they may be banned even though they are typically possessed for lawful purposes, including self-defense in the home.
Maryland’s ban on ‘military-like’ ‘assault weapons’ and ‘high-capacity magazines upheld.
To provide ostensible legal support for an inherently unconstitutional State Government action, the Fourth Circuit Court majority said, in pertinent part,
‘Being satisfied that there is substantial evidence indicating that the FSA’s prohibitions against assault weapons and large-capacity magazines will advance Maryland’s goals, we conclude that the FSA survive intermediate scrutiny. Simply put, the State has shown all that is required: a reasonable, if not perfect, fit between the FSA and Maryland’s interest in protecting public safety.
And, as for plaintiff’s equal protection claim, the Fourth Circuit said: ‘The Supreme Court has recognized that equal protection ‘is essentially a direction that all persons similarly situated should be treated alike.’ [citation omitted] Thus, a plaintiff challenging a state statute on an equal protection basis ‘must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.’”
In other words, the average person is just a peasant. If one dies at the hands of a predator because he could not adequately defend himself, he can rest in peace knowing that every other peasant may well receive the same end: as the lives of all peasants receive equal treatment: the lives of all peasants are equally worthless.
Peruta vs. California: Petition for certiorari denied on June 26, 2017
Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.
California law denying law-abiding citizens the Second Amendment right to carry handguns outside the home for self-defense in the absence of a showing of “good cause” remains in effect.
Thomas Dissenting; Gorsuch joins dissent:
The Second Amendment to the Constitution guarantees that ‘the right of the people to keep and bear Arm[s] shall not be infringed.’ At issue in this case is whether that guarantee protects the right to carry firearms in public for self-defense. Neither party disputes that the issue is one of national importance or that the courts of appeals have already weighed in extensively. I would therefore grant the petition for a writ of certiorari.
California generally prohibits the average citizen from carrying a firearm in public spaces, either openly or concealed. With a few limited exceptions, the State prohibits open carry altogether. Cal. Penal Code Ann. §§25850, 26350 (West 2012). It proscribes concealed carry unless a resident obtains a license by showing ‘good cause,’ among other criteria, §§26150, 26155, and it authorizes counties to set rules for when an applicant has shown good cause, §26160.
In the county where petitioners reside, the sheriff has interpreted ‘good cause’ to require an applicant to show that he has a particularized need, substantiated by documentary evidence, to carry a firearm for self-defense. The sheriff’s policy specifies that ‘concern for one’s personal safety’ does not ‘alone’ satisfy this requirement. Peruta v. County of San Diego, 742 F. 3d 1144, 1148 (CA9 2014) (internal quotation marks omitted). Instead, an applicant must show ‘a set of circumstances that distinguish the applicant from the mainstream and cause him to be placed in harm’s way.’ Id., at 1169 (internal quotation marks and alterations omitted). ‘[A] typical citizen fearing for his personal safety—by definition—cannot distinguish himself from the mainstream.’ Ibid. (emphasis deleted; internal quotation marks and alterations omitted). As a result, ordinary, ‘law-abiding, responsible citizens,’ District of Columbia v. Heller, 554 U. S. 570, 635, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), may not obtain a permit for concealed carry of a firearm in public spaces.
Petitioners are residents of San Diego County (plus an association with numerous county residents as members) who are unable to obtain a license for concealed carry due to the county’s policy and, because the State generally bans open carry, are thus unable to bear firearms in public in any manner. They sued under Rev. Stat. §1979, 42 U. S. C. §1983, alleging that this near-total prohibition on public carry violates their Second Amendment right to bear arms. They requested declaratory and injunctive relief to prevent the sheriff from denying licenses based on his restrictive interpretation of “good cause,” as well as other “relief as the Court deems just and proper.” First Amended Complaint in No. 3:09-cv-02371, (SD Cal.) ¶¶149, 150, 152. The District Court granted respondents’ motion for summary judgment, and petitioners appealed to the Ninth Circuit.
In a thorough opinion, a panel of the Ninth Circuit reversed. 742 F. 3d 1144. The panel examined the constitutional text and this Court’s precedents, as well as historical sources from before the founding era through the end of the 19th century. Id., at 1150-1166. Based on these sources, the court concluded that “the carrying of an operable handgun outside the home for the lawful purpose of self-defense . . . constitutes ‘bear[ing] Arms’ within the meaning of the Second Amendment.” Id., at 1166. It thus reversed the District Court and held that the sheriff’s interpretation of “good cause” in combination with the other aspects of the State’s regime violated the Second Amendment’s command that a State “permit some form of carry for self-defense outside the home.” Id., at 1172.
The Ninth Circuit sua sponte granted rehearing en banc and, by a divided court, reversed the panel decision. In the en banc court’s view, because petitioners specifically asked for the invalidation of the sheriff’s ‘good cause’ interpretation, their legal challenge was limited to that aspect of the applicable regulatory scheme. The court thus declined to ‘answer the question of whether or to what degree the Second Amendment might or might not protect a right of a member of the general public to carry firearms openly in public.’ Peruta v. County of San Diego, 824 F. 3d 919, 942 (2016). It instead held only that “the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.” Id., at 924 (emphasis added).
We should have granted certiorari in this case. The approach taken by the en banc court is indefensible, and the petition raises important questions that this Court should address. I see no reason to await another case.’
The en banc court’s decision to limit its review to whether the Second Amendment protects the right to concealed carry—as opposed to the more general right to public carry—was untenable. Most fundamentally, it was not justified by the terms of the complaint, which called into question the State’s regulatory scheme as a whole. See First Amended Complaint ¶63 (‘Because California does not permit the open carriage of loaded firearms, concealed carriage with a [concealed carry] permit is the only means by which an individual can bear arms in public places’); id., ¶74 (‘States may not completely ban the carrying of handguns for self-defense’). And although the complaint specified the remedy that intruded least on the State’s overall regulatory regime—declaratory relief and an injunction against the sheriff’s restrictive interpretation of ‘good cause’—it also requested ‘[a]ny further relief as the Court deems just and proper.’ Id., ¶152.
Nor was the Ninth Circuit’s approach justified by the history of this litigation. The District Court emphasized that ‘the heart of the parties’ dispute’ is whether the Second Amendment protects ‘the right to carry a loaded handgun in public, either openly or in a concealed manner.’ Peruta v. County of San Diego, 758 F. Supp. 2d 1106, 1109 (SD Cal. 2010). As the Ninth Circuit panel pointed out, ‘[petitioners] argue that the San Diego County policy in light of the California licensing scheme as a whole violates the Second Amendment because it precludes a responsible, law-abiding citizen from carrying a weapon in public for the purpose of lawful self-defense in any manner.’ 742 F. 3d, at 1171. The panel further observed that although petitioners ‘focu[s]’ their challenge on the ‘licensing scheme for concealed carry,’ this is ‘for good reason: acquiring such a license is the only practical avenue by which [they] may come lawfully to carry a gun for self-defense in San Diego County.’ Ibid. Even the en banc court acknowledged that petitioners ‘base their argument on the entirety of California’s statutory scheme” and ‘do not contend that there is a free-standing Second Amendment right to carry concealed firearms.’ 824 F. 3d, at 927.
Had the en banc Ninth Circuit answered the question actually at issue in this case, it likely would have been compelled to reach the opposite result. This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion. As we explained in Heller, to ‘bear arms’ means to “wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.” 554 U. S., at 584, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (quoting Muscarello v. United States, 524 U. S. 125, 143, 118 S. Ct. 1911, 141 L. Ed. 2d 111 (1998) (Ginsburg, J., dissenting); alterations and some internal quotation marks omitted). The most natural reading of this definition encompasses public carry. I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen. See Drake v. Filko, 724 F. 3d 426, 444 (CA3 2013) (Hardiman, J., dissenting) (‘To speak of ‘bearing’ arms solely within one’s home not only would conflate ‘bearing’ with ‘keeping,’ in derogation of the [Heller] Court’s holding that the verbs codified distinct rights, but also would be awkward usage given the meaning assigned the terms by the Supreme Court’); Moore v. Madigan, 702 F. 3d 933, 936 (CA7 2012) (similar).
The relevant history appears to support this understanding. The panel opinion below pointed to a wealth of cases and secondary sources from England, the founding era, the antebellum period, and Reconstruction, which together strongly suggest that the right to bear arms includes the right to bear arms in public in some manner. See 742 F. 3d, at 1153-1166 (canvassing the relevant history in detail); Brief for National Rifle Association as Amicus Curiae 6-16. For example, in Nunn v. State, 1 Ga. 243 (1846)—a decision the Heller Court discussed extensively as illustrative of the proper understanding of the right, 554 U. S., at 612, 128 S. Ct. 2783, 171 L. Ed. 2d 637—the Georgia Supreme Court struck down a ban on open carry although it upheld a ban on concealed carry. 1 Ga., at 251. Other cases similarly suggest that, although some regulation of public carry is permissible, an effective ban on all forms of public carry is not. See, e.g., State v. Reid, 1 Ala. 612, 616-617 (1840) (‘A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional’).
Finally, the Second Amendment’s core purpose further supports the conclusion that the right to bear arms extends to public carry. The Court in Heller emphasized that ‘self-defense’ is ‘the central component of the [Second Amendment] right itself.’ 554 U. S., at 599, 128 S. Ct. 2783, 171 L. Ed. 2d 637. This purpose is not limited only to the home, even though the need for self-defense may be ‘most acute’ there. Id., at 628, 128 S. Ct. 2783, 171 L. Ed. 2d 637. ‘Self-defense has to take place wherever the person happens to be,’ and in some circumstances a person may be more vulnerable in a public place than in his own house. Volokh, Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1515 (2009).
Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively. Twenty-six States have asked us to resolve the question presented, see Brief for Alabama et al. as Amici Curiae, and the lower courts have fully vetted the issue. At least four other Courts of Appeals and three state courts of last resort have decided cases regarding the ability of States to regulate the public carry of firearms. Those decisions (plus the one below) have produced thorough opinions on both sides of the issue. See Drake, 724 F. 3d 426, cert. denied sub nom. Drake v. Jerejian, 572 U. S. ___, 134 S. Ct. 2134, 188 L. Ed. 2d 1124 (2014); 724 F. 3d, at 440 (Hardiman, J., dissenting); Woollard v. Gallagher, 712 F. 3d 865 (CA4), cert. denied, 571 U. S. ___, 134 S. Ct. 422; 187 L. Ed. 2d 281 (2013); Kachalsky v. County of Westchester, 701 F. 3d 81 (CA2 2012), cert. denied sub nom. Kachalsky v. Cacace, 569 U. S. ___, 569 U.S. 918, 133 S. Ct. 1806, 185 L. Ed. 2d 812 (2013); Madigan, 702 F. 3d 933; id., at 943 (Williams, J., dissenting); Commonwealth v. Gouse, 461 Mass. 787, 800-802, 965 N. E. 2d 774, 785-786 (2012); Williams v. State, 417 Md. 479, 496, 10 A. 3d 1167, 1177 (2011); Mack v. United States, 6 A. 3d 1224, 1236 (D. C. 2010). Hence, I do not see much value in waiting for additional courts to weigh in, especially when constitutional rights are at stake.
The Court’s decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right. See Friedman v. Highland Park, 577 U. S. ___, ___, 136 S. Ct. 447; 193 L. Ed. 2d 483 (2015) (Thomas, J., dissenting from denial of certiorari) (136 S. Ct. 447; 193 L. Ed. 2d 483, 484) (‘The Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions’); Jackson v. City and County of San Francisco, 576 U. S. ___, ___, 135 S. Ct. 2799; 192 L. Ed. 2d 865 (2015) (same). The Constitution does not rank certain rights above others, and I do not think this Court should impose such a hierarchy by selectively enforcing its preferred rights. Id., at ___, 135 S. Ct. 2799; 192 L. Ed. 2d 865, 866) (‘Second Amendment’ rights are no less protected by our Constitution than other rights enumerated in that document’). The Court has not heard argument in a Second Amendment case in over seven years—since March 2, 2010, in McDonald v. Chicago, 561 U. S. 742, 130 S. Ct. 3020, 177 L. Ed. 2d 894. Since that time, we have heard argument in, for example, roughly 35 cases where the question presented turned on the meaning of the First Amendment and 25 cases that turned on the meaning of the Fourth Amendment. This discrepancy is inexcusable, especially given how much less developed our jurisprudence is with respect to the Second Amendment as compared to the First and Fourth Amendments.
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. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.”
Justice Thomas is absolutely right.
Justice Thomas is absolutely right. He asserts over and over again:
The Second Amendment is not to be treated as “a disfavored right.” It isn’t a “second-class right.” “Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document.” “This discrepancy is inexcusable, especially given how much less developed our jurisprudence is with respect to the Second Amendment as compared to the First and Fourth Amendments.” And, still, the liberal wing of the High Court does just that. Because the liberal wing of the Supreme Court finds the fundamental, unalienable right embodied in the Second Amendment personally distasteful, it allows itself to embrace the pretense, or more likely the delusion, that the right of the people to keep and bear arms is to be expressed today as something less than the fundamental, unalienable right that it in fact is; indeed, that the right embodied in the Second Amendment isn’t to be treated even as a minor, non-fundamental right, but, rather, as nothing more than a minor concession, a privilege, to be bestowed on American citizens at the whim of Government; something even less than “gender rights” that Radical Left groups, such as overbrook.org would dare raise to the level of a fundamental right, contorting, distorting, twisting the U.S. Constitution to such an extreme extent that it becomes unrecognizable as the sacred, immutable document it once was and was forever intended to be, becoming a horrible mutation; a grotesque travesty of what was once something profound, beautiful, sublime.
Radical Left and New Progressive elements in American society today, prefer to call the U.S. Constitution, as they choose to perceive it today, a so-called “Living Constitution,” grounded on what some legal scholars and academicians refer to as “living Constitutional theory;” a theory opposed to “originalism,” the latter theory of which seeks to preserve the U.S. Constitution as written, and that seeks to preserve a free Republic as the Founders of the Nation intended.
See, e.g., “Living Constitutional Theory,” by Andrew Coan, Duke Law Journal, Volume 66, June 2017. Not surprisingly, proponents of so-called living Constitutional theory would attempt to buttress this new living constitutional theory by denigrating originalism, and its corollary textualism, by misquoting the late Associate Justice, Antonin Scalia.
It is one thing for a lower Federal Court to abdicate its responsibility to defend and protect the U.S. Constitution. It is quite another thing for the U.S. Supreme Court to do so. Yet the lower Courts take their cue from the Highest Court in the Land. If the U.S. Supreme Court abdicates its responsibility, it should well expect the lower Courts to do so. And, they have.
CHIEF JUSTICE JOHN ROBERTS IS DEAD WRONG: SOME JUSTICES DO WORK IN A POLITICAL MANNER
OVERTLY POLITICAL LIBERAL-WING OF SUPREME COURT INTENDS TO CONSTRAIN AND EVENTUALLY DESTROY THE SECOND AMENDMENT
Given the substantial opportunity for the U.S. Supreme Court to review several U.S. Circuit Court of Appeals decisions that upheld facially unconstitutional Government decisions, infringing the very core of the Second Amendment, it is remarkable that the High Court failed to take up any one of them. One would have thought the High Court would have done so, would have been compelled to do so, consistent with their Oath to do so. And one would have thought the High Court would relish doing so, given blatant lower Court hostility toward the Second Amendment and a dismissive attitude toward clear, categorical Supreme Court precedent as laid down in the 2008 Heller and 2010 McDonald cases. But, many Justices obviously were not content to do so. That the Supreme Court failed to garner even four votes on any one of a substantial number of cases, coming on the heels of the seminal Second Amendment Heller and McDonald U.S. Supreme Court cases, where State, County, or Municipal Governments visibly, defiantly, blatantly, defiantly attacked the very core of the Second Amendment, this necessarily bespeaks a decided, decisive, and unruly antipathy expressed by many Justices on the High Court, toward the Second Amendment of the Bill of Rights. Associate Justice Clarence Thomas rightfully, justifiably, and clearly articulated his frustration with both the U.S. Supreme Court and the lower federal U.S. Circuit Courts of Appeal in his comprehensive, dissenting comments in several of those Circuit Court of Appeals cases.
If the High Court had taken up any one of the myriad Second Amendment cases within the first few years that Heller and McDonald were decided, it is likely the writs filed in many of the cases, mentioned and discussed, supra, would never have been filed; would never have to be filed, as the U.S. District Court Judges and U.S. Circuit Court of Appeals Judges would be loath to attract the righteous ire of the U.S. Supreme Court. But, as the High Court routinely refuses to hear any one of many egregious U.S. Circuit Court of Appeals decisions, these Courts, not surprisingly, continue to dismiss the Second Amendment right of the people to keep and bear arms, and, just as blatantly dismiss out-of-hand the rulings of the Supreme Court in Heller and McDonald.
Of course, the normally reticent Chief Justice, John Roberts, doesn’t normally interject remarks outside the Court setting but felt no reluctance to do so when, the U.S. President, Donald Trump, correctly exclaimed how political the Supreme Court is.
The New York Times, always a media source that can be counted on to incessantly, viciously attack the President and laud those who do the same, was quick to jump on the remarks of the Chief Justice in late 2018, reporting:
Chief Justice John G. Roberts Jr. defended the independence and integrity of the federal judiciary on Wednesday, rebuking President Trump for calling a judge who had ruled against his administration’s asylum policy “an Obama judge.”
The chief justice said that was a profound misunderstanding of the judicial role.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said in a statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
The Times took another dig at the U.S. President, when, almost one year later, they again reported with glee, on Chief Justice Roberts’ further jabs at President Trump, reporting:
“We don’t go about our work in a political manner,” he told an audience of some 2,000 people at the Temple Emanu-El’s Streicker Center in Manhattan.
Asked about President Trump’s attack on a decision he said had been rendered by an “Obama judge” and a recent brief from Democratic senators that questioned the Supreme Court’s legitimacy, Chief Justice Roberts said he had no objection to criticism of the court.
“We probably do a better job criticizing ourselves in our dissents than anybody else could,” he said.
People often note that the court is made up of five Republican appointees and four Democratic ones, he said, and they expect predictable 5-to-4 decisions along those lines.
“Last year,” he said, “we had 19 5-to-4 decisions, and seven of them were divided with the five justices appointed by Republican presidents in the majority and the four justices appointed by Democratic presidents in dissent.”
“That shouldn’t come as a surprise because we don’t go about our work in a political manner,” he said.”
“That shouldn’t come as a surprise”? There is something else that doesn’t come as a surprise, but would be a nice indeed surprise were it to come about, namely, the judicial philosophy and attitude of Associate Justices Ruth Bader Ginsburg, Steven Breyer, Sonia Sotomayor, Elena Kagan, and retired Associate Justice John Paul Stevens, toward the fundamental, unalienable, immutable right of the people to keep and bear arms, as codified in the Second Amendment to the U.S. Constitution. The American public knows where those Justices’ allegiance rests when it comes to the Second Amendment. They seek to defeat it at every turn. Chief Justice John Roberts doesn’t bother to direct the public’s attention to that disturbing and hardly incidental fact about them; a fact that is anything but anomalous.
This isn’t a matter of judicial independence, where each Justice does whatever he or she wants. This is a matter of personal integrity, judicial restraint, the obligation to one’s Oath, and reverence toward the sanctity of our natural rights, to be understood and applied to the facts of a case in controversy in strict accord to the dictates of the U.S. Constitution, as written, and as ratified, as the Framers intended.
The Oath of the Supreme Court Justice is set forth in Statute: 28 U.S. Code§ 453. Oaths of justices and judges:
Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.”
Copyright © 2020 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.