The Supreme Court dealt a serious blow to the future of Second Amendment litigation Monday morning by rejecting nearly a dozen Second Amendment-related cases that it had been considering in conference in recent weeks. Despite four justices announcing in the challenge to a New York City gun law that was mooted by the high court that they wanted and were ready to hear one of the many 2A cases pending before the court, today’s orders take them all off the table.
Here’s a quick look at the cases denied by the Supreme Court in its orders today.
Pena v. Horan is a challenge to California’s microstamping law, which took effect in 2012 and has curtailed not only the availability of new models of handguns, but has caused existing models of handguns to be barred from being sold in the state.
Gould v. Lipson is a challenge to Massachusetts’ carry laws.
Worman v. Healey is a challenge to the state’s ban on so-called assault weapons.
Malpasso v. Pallozzi takes on similar requirements in the state of Maryland.
Culp v. Raoul challenges an Illinois law barring residents from 45 other states from applying for a non-resident concealed carry license, while Wilson v. Cook County takes on the Illinois county’s ban on modern sporting rifles.
Mance v. Barr is a case challenging the ban on interstate sales of handguns.
Justice Clarence Thomas, joined by Justice Brett Kavanaugh, released a written dissent to the denial of the Rogers vs. Grewal case blasting his colleagues for refusing to hear the case.
It appears that a handful of States throughout the country prohibit citizens from carrying arms in public unless they can establish “good cause” or a “justifiable need” for doing so. The majority of States, while regulating the carrying of arms to varying degrees, have not imposed such a restriction, which amounts to a “[b]a[n] on the ability of most citizens to exercise an enumerated right.”
The Courts of Appeals are squarely divided on the constitutionality of these onerous “justifiable need” or “good cause” restrictions. The D. C. Circuit has held that a law limiting public carry to those with a “good reason to fear injury to [their] person or property” violates the Second Amendment.
By contrast, the First, Second, Third, and Fourth Circuits have upheld the constitutionality of licensing schemes with “justifiable need” or “good reason” requirements, applying what purported to be an intermediate scrutiny standard. “One of this Court’s primary functions is to resolve ‘important matter[s]’ on which the courts of appeals are ‘in conflict.’” The question whether a State can effectively ban most citizens from exercising their fundamental right to bear arms surely qualifies as such a matter. We should settle the conflict among the lower courts so that the fundamental protections set forth in our Constitution are applied equally to all citizens.
Why didn’t the Supreme Court take a single one of these cases, given the fact that we know there were four justices in favor of hearing a Second Amendment-related challenge? The most obvious answer is that the four justices were unconvinced that they would have a fifth and deciding vote to uphold the right to keep and bear arms. Chief Justice John Roberts joined the majority in both the Heller and McDonald decisions, but it could be that there are doubts among the conservative wing of the Court as to how Roberts would rule in a future case.
It may also be that while justices like Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh all agree that a Second Amendment-related case needs to be heard, the four simply couldn’t agree on which case or cases should get the nod from the Court.
We don’t know for sure, because the Supreme Court is one of the last remaining leak-proof institutions in Washington, D.C., but I’d say that for now, the theory that Roberts is a question mark or has indicated opposition to these 2A cases is the most likely theory.
We’ll have much more on today’s decision, and what it means for the future of Second Amendment jurisprudence coming up on Bearing Arms’ Cam & Co. this afternoon, so be sure to tune in for more analysis of today’s incredibly disappointing decision by the Supreme Court.