Arizona -(Ammoland.com)- In an unexpected move, the Supreme Court has voted to deny certiorari (refuse to hear) ten Second Amendment cases which have been held at the court, some of which have been waiting for years.
Much speculation has been written about the cases, with the expectation the Supreme Court would hear at least one of them in order to clarify splits that have occurred in the circuit courts on the issues of carrying firearms outside the home, bans on gun magazines and semi-automatic rifles.
The court is believed to have four justices inclined to enforce the Second Amendment: Thomas, Alito, Gorsuch, and Kavanaugh. There are four justices believed to wish to render the Second Amendment impotent and toothless: Ginsburg, Breyer, Sotomayor, and Kagan.
Chief Justice Roberts is speculated as being the swing vote which could go either way. He voted for both the Heller and McDonald decisions to uphold the Second Amendment as written and applied to the states by the Fourteenth Amendment.
Many conservatives see him as unreliable. Who knows what pressures are brought to bear on nine of the most powerful men and women in the world?
Something happened to change the balance and bring about a majority to deny certiorari to the ten Second Amendment cases.
The Supreme Court does not tell us who voted for the denial of certiorari. We know two justices disagree strongly enough to dissent.
Thomas Rogers, et al. v. Gurbir Grewal Denied
Justice Thomas wrote the dissent on the Rogers v. Grewal case. Justice Kavanaugh joined the dissent for Parts I and III of the dissent but did not join for Part II.
In Part I, Justice Thomas explains the need to reign in the circuit court’s decisions on the Second Amendment. Justice Thomas writes:
This approach raises numerous concerns. For one, the courts of appeals’ test appears to be entirely made up. The Second Amendment provides no hierarchy of “core” and peripheral rights. And “[t]he Constitution does not prescribe tiers of scrutiny.” Whole Woman’s Health v. Hellerstedt, 579 U. S. ___, ___ (2016) (THOMAS, J., dissenting) (slip op., at 12); see also Heller II, supra, at 1283 (Kavanaugh, J., dissenting) (listing constitutional rights that are not subject to means-ends scrutiny). Moreover, there is nothing in our Second Amendment precedents that supports the application of what has been described as “a tripartite binary test with a sliding scale and a reasonable fit.” Duncan v. Becerra, 265 F. Supp. 3d 1106, 1117 (SD Cal. 2017), aff ’d,742 Fed. Appx. 218 (CA9 2018).
Part II is a strongly reasoned argument that Second Amendment rights exist outside the home. In Part II, Justice Thomas writes this:
“The most natural reading of this definition encompasses public carry.” Peruta v. California, 582 U. S. ___, ___ (2017) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 5). Confrontations, of course, often occur outside the home. See, e.g., Moore, supra, at 937 (noting that “most murders occur outside the home” in Chicago). Thus, the right to carry arms for self-defense inherently includes the right to carry in public. This conclusion not only flows from the definition of “bear Arms” but also from the natural use of the language in the text. As I have stated before, it is “extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.” Peruta, supra, at ___ (opinion dissenting from denial of certiorari) (slip op., at 5).
In part III, which Justice Kavanaugh agrees with, Justice Thomas writes this:
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.” Wrenn, 864 F. 3d, at 666. 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. Wrenn, 864 F. 3d, at 655 (internal quotation marks omitted).7 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. See Gould, 907 F. 3d, at 677; Kachalsky, 701 F. 3d, at 101; Drake, 724 F. 3d, at 440; Masciandaro, 638 F. 3d, at 460.
In eight states and two American territories, the right of citizens and residents to bear arms outside of the home is arbitrarily restricted by a governmental agent, be it a law enforcement officer, board, or administrator, who can deny a permit to carry outside the home on a subjective basis.
It is the rule of man as envisioned by the progressive left, instead of the rule of law.
The eight states are: California, Delaware, Hawaii, New Jersey, New York, Massachusetts, Maryland, and Rhode Island. The two American territories are the U.S. Virgin Islands and American Samoa. Those political entities contain about 26 percent of the population of the United States.
More than a quarter of the United States population have their Second Amendment rights infringed on a regular basis. The Supreme Court has voted to do nothing to correct this situation.
What changed at the court to precipitate the decision to continue the uneasy status quo? What tipped the balance toward the situation where circuits are allowed to accept, or even encourage, states to render the Second Amendment impotent?
The internal politics of the Supreme Court are hidden. It is unknown which justices voted to deny certiorari. The message from the court seems to be: Your Second Amendment rights are not respected here.
It could have been worse. The Court could have accepted a case, and reversed Heller. It shows a strong commitment, by at least one justice, to avoid the issue. It appears they do not wish to rule on Second Amendment issues, probably because the logic is clear.
The ten Second Amendment cases denied certiorari are:
- 1st Circuit: Gould v. Lipson, and Worman v. Healy.
- 3rd Circuit: Rogers v. Grewal, Cheeseman v. Polillo, and Ciolek v. New Jersey.
- 4th Circuit: Malpasso v. Pallozzi
- 5th Circuit: Mance v. Barr
- 7th Circuit: Culp v. Raoul and Wilson v. Cook County.
- 9th Circuit: Pena v. Horan
Expect the rights of citizens in California, New Jersey, and the other states which view the Second Amendment with disdain, to be abused in more imaginative ways.
The remedy for the Supreme Court appears to be the appointment of at least one more Supreme Court justice who views the Constitution, as written, as the Supreme Law of the United States.
The remedy of the ballot box is available to citizens of the affected states. It is possible the current unrest will convince voters their Second Amendment rights are worth preserving.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30-year career in Army Research, Development, Testing, and Evaluation.