What Will Become Of U.S. Supreme Court Heller And McDonald Precedent?

Why I Am Suing The Governor of Virginia, iStock-1055138108
What Will Become Of U.S. Supreme Court Heller And McDonald Precedent? iStock-1055138108

U.S.A.-(AmmoLand.com)- 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?

SCOTUS Blog reporter, Amy Howe, reported, on April 28, 2020, that:

“We expect orders from Friday’s conference on Monday, May 4, at 9:30 a.m. EDT [Re: ten pending Second Amendment cases]

But, as of the posting of this article on the Arbalest Quarrel, May 19, 2020, AQ has not yet heard whether the High Court will be reviewing any one or more of the ten pending Second Amendment 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. We do so in the next installment of our multi-series article on the New York City gun transport case.



Arbalest Quarrel

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Stag
Stag
1 month ago

They have a track record of refusing to hear these cases and when they do their “opinions” have more often harmed than helped. Even that butter Scalia screwed us by what he did in Heller. If you need a judge to interpret “shall not be infringed” then you’re a moron. #AllArmsLawsAreUnconstitutional

CommonSense4America
CommonSense4America
1 month ago

Sorry folks,,,I just don’t understand it. The SCOTUS is one branch of our government. The Bill of Rights is directed to our government which includes the SC. THE 2ND AMENDMENT states very clearly to the government that they cannot infringe on this RIGHT. Being one branch of our government,,,how can they vote against it?

Vince Warde
Vince Warde
1 month ago

Let’s review: 1) We have four solid votes for a “high” view of the 2A right. 2) It takes four votes to hear a case (grant cert). 3) Chief Justice Roberts voted with the majority in both Heller and McDonald. If Chief Justice Roberts again votes with the majority, we win. 4) Kagan could be a wildcard, as she has become both a gun owner and hunter since joining the court (thanks to Justice Saclia). 5) Justice Ginsburg is 87 and has many health issues. There is a very good chance she will not be with us by the time… Read more »

American Patriot
American Patriot
1 month ago

All I keep hearing is a lot of talk but no action on 2A Supreme Court cases…….I’ll believe it when I hear the gavel fall!

Wild Bill
Wild Bill
1 month ago

@RK, What will become of, you ask? That depends upon the make up of the S.Ct, which depends on who is POTUS, and who is in Congress, which depends on the next election, which depends on us.
I am mindful of the words of that great American philosopher, Yogi Bera, who said “Predictions are tough, especially when they are about the future.?

Bill
Bill
1 month ago

I think they’ll hear exactly ZERO cases because The President was either suckered by Kavanaugh or is in cahoots with him. I never did trust his nomination, he looks like a little worm and he cares nothing about OUR second amendment. These people come from a different world than do we and they dont like guns. Kavanaugh will be just another Roberts. There is only one way out of this and nobody has the guts for it and they know it. Everybody is gonna preach peaceful action right up to the very second we hear some politician on TV saying… Read more »

Relic
Relic
1 month ago

Why do 2nd amendment supporters constantly rationalize the scotus not taking up a case as somehow being tied to the election. That makes no sense for conservative judges to do that & even less for libswines as it has no bearing on anything in any way shape or form that effects them & theres nothing that elections can change in this regard. It seems like those saying that its due to the election are the ones who want to rationalize the judges cowardis actions rather than admit it’s because they are spineless cowards too scared of libswines crying (independent of… Read more »

Stag
Stag
1 month ago
Reply to  Relic

I think it’s a mixture of buyers remorse and cognitive dissonance. People refuse to accept that their team isn’t on their side.

Darkman
Darkman
1 month ago

The “Courts”have never been and will never be a supporter of the 2nd A. Simply because it is as much a threat to their power as it is to politicians. It’s always about ” The Power”.

Wild Bill
Wild Bill
1 month ago
Reply to  Darkman

@Dark, That first sentence in not true. The S. Ct has decided for the Second Amendment in thirty-five cases, and the lower courts have decided for the Second Amendment hundreds of times. See “Supreme Court Cases” by Alan Korwin, David Kopel, and Stephen Halbrook. (very inexpensive).

Don in 805
Don in 805
1 month ago

The Federal Judge who review our TRO against the County of Ventura simply IGNORED Heller in making her ruling.

Wild Bill
Wild Bill
1 month ago
Reply to  Don in 805

@D805, that is exactly what is going on. The elitists that have wormed their way into power know that they can ignore the Constitution and our Civil Rights.
If Trump had the House of Reps and the Senate, they could be impeached for bad behavior.

willyd
willyd
1 month ago
Reply to  Wild Bill

WB; This is the main reason I still say Term Limits for all Government,Elected and Appointed should have no more Longer Terms than the President can serve, (MAX 10 YEARS) then go out to the REAL LIFE!!!!!!!!!!!! After Roosevelt the constitution was amended and changed!!!!!!!!!!!!

Oldvet
Oldvet
1 month ago
Reply to  willyd

@willyd…Wild Bill has called for term limits for as long as I remember reading his post . Term limits would also put a time limit on the effect of soros and blumturd dollars . I am not sure that 10 years isn’t too long even .

Wild Bill
Wild Bill
1 month ago
Reply to  Oldvet

@OV, True, and up clicks for everyone!