Roberts' Reluctance And The 2A Waiting Game

Gun owners have had a pretty good idea that Chief Justice John Roberts is reluctant to take a Second Amendment case for awhile now. First there was the Supreme Court’s mooting of a case dealing with a New York City gun law back in April, denying an opportunity for SCOTUS to once again weigh in on the right to keep and bear arms. That was followed in June by the refusal to hear any of the ten cases dealing with the Second Amendment that the Court had been considering in conference.


At that point, it had become obvious that Roberts was the wild card, with justices Gorsuch, Thomas, Alito, and Kavanaugh all on board with taking at least one case dealing with the right to keep and bear arms. It only takes four justices to agree to hear a case, yet even those four justices balked at accepting any. That was a clear sign that they were concerned about which way Roberts might vote.

Having watched the Second Amendment get put on the back burner at the Supreme Court in recent months, I can’t imagine that any gun owner was surprised to see CNN’s report on Monday providing a few more details on Roberts’ reluctance, albeit through anonymous sources.

After hearing a New York City gun regulation challenge in December, the majority decided the case was moot because the city had amended its ordinance which banned the transporting of guns to firing ranges or second homes outside the city.

CNN has learned that resolution of that case took many twists and multiple draft opinions. Guided by Roberts, Justice Brett Kavanaugh crafted much of what turned out to be an unsigned “per curiam” opinion — joined by six justices, including Roberts — returning the case to lower court judges. Kavanaugh also wrote a separate statement — this one he signed — suggesting it was time for the justices to resolve conflicting interpretations of Second Amendment rights.
Challenges to other firearms regulations were pending and conservatives who had wanted to clarify the scope of the Second Amendment had to consider whether to bring the issue back to the justices.
In mid-June, the high court turned down petitions from 10 challenges to state laws limiting the availability of firearms and when they can be carried in public.
The action perplexed court observers who had believed the right-wing majority was eager to further elucidate the 2008 landmark District of Columbia v. Heller. Some conservative justices indeed wanted to take up the issue, but they apparently could not count on a majority.
For those of us who pay close attention to the legal fights over the Second Amendment, the only new information that CNN gave us was the fact that Kavanaugh wrote the “per curium” opinion that sent the NYC gun case back down to the lower courts. What’s more surprising, frankly, is that CNN got anyone close to the Court to speak about what’s been going on there over the last term. As my colleague Allahpundit notes at Hot Air, the Supreme Court has long been considered the last leak-proof institution in Washington, D.C.

It’s remarkable that anyone inside the Court would leak details of Roberts’s deliberations to CNN, and it’s more remarkable that this isn’t the first time it’s happened. CNN also reported on Roberts’s alleged vote-switch last year on whether the new census could rightly include a citizenship question or not. The Court rarely leaks; clerks and staff know that their legal careers would be ruined if they were caught spilling secrets to reporters. Yet this is the second time in 10 months that CNN has purported to expose Roberts — and they’re promising much more to come.

Who’s spilling the beans on him? Does he have an enemy on the Court itself?

I don’t know if Roberts has any outright enemies on the Court, but he may very well have some incredibly frustrated colleagues. Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh have all spoken or written about the need to take a Second Amendment case since lower courts are running roughshod over the Court’s decisions in Heller and McDonald. Could one of those justices be venting to CNN? It’s certainly a possibility, but to me the much bigger question is why the liberal wing of the Court didn’t decide to hear a Second Amendment challenge if the conservative wing of the Court was convinced that Roberts wasn’t going to side with the right to keep and bear arms?


Is Roberts playing his cards so close to the vest that neither side is sure where he’ll land? Or is the Court’s left wing content to keep the status quo in place for now rather than attempt to deliver an opinion that would dramatically restrict the right to keep and bear arms? CNN’s sources didn’t provide any answers to that question, and for now the Second Amendment waiting game continues.


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