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Can we go from four to five justices who will uphold the Second Amendment?
Filling the Supreme Court vacancy is of upmost importance to conservatives, but it will not lead us to the promised land of a constitutional paradise. At present, there is only one full-fledged originalist on the court, and in general, until the other GOP appointees get more aggressive in reversing new, malignant precedents in the lower courts, we will continue to suffer from judicial tyranny. However, the most auspicious prospect for a return to constitutional jurisprudence at the court will likely be in cases involving gun rights. Nothing to sneeze at, indeed, especially with the growing violence menacing our safety daily.
Years after discovering many novel pseudo-rights, the Supreme Court finally recognized the Second Amendment's individual right to self-defense in 2008 in the landmark D.C. v. Heller decision. Two years later, in McDonald v. Chicago, the court ruled that these constitutional constraints on gun control applied to the states as well. Chief Justice Roberts joined both of those decisions, yet over the past decade, he has allowed lower courts to chip away at them to the point that they now only affirm some right to own some sort of gun in one's home. Everything else — from bans on common weapons and extremely common, almost standard magazines to categorical bans on the right to bear arms outside of one's home — has been upheld by nearly every appeals court.
What has happened over the past few years is a losing battle of gun rights groups trying to enforce Heller and the Supreme Court turning away their appeals. Chief Justice Roberts clearly has no desire to affirm an individual right to carry, even though it is the logical outcome of Heller, so he has chosen not to take up the appeals. What is so egregious about this practice is that lower courts are literally repealing a Supreme Court opinion.
For example, in Kolbe v. Hogan, 10 of the 14 judgeson the radical Fourth Circuit ruled that 45 commonly owned semi-automatic rifles are military weapons and are therefore not protected by the Constitution. The court used Breyer's dissent to create a state interest-balancing test to limit the Second Amendment, a test explicitly rejected by the Heller majority opinion. For the Supreme Court to deny these appeals was unprecedented. It would be like lower court judges citing Rehnquist's Roe v. Wade dissent in an abortion case.
While Justice Kennedy was still on the court, it was clear that gun rights advocates didn't even have the requisite four votes required to grant certiorari and take up the appeals pending before the high court. Thomas and Scalia bitterly dissented from the denial of cert in several cases in 2015. Alito also joined Thomas in voicing his concern about the unwillingness of the high court to enforce its own precedent. In a concurrence in Jaime Caetano v. Massachusetts, Justice Alito accused his liberal colleagues of leaving people's safety "to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe."
Several months earlier, when Scalia was still alive, Thomas wrote a dissent in the denial of cert of the appeal from the Ninth Circuit in a case involving San Francisco's law requiring that all guns be locked up even at home. "Despite the clarity with which we described the Second Amendment's core protection for the right of self-defense," wrote Thomas, joined by Scalia in the dissent, "lower courts, including the ones here, have failed to protect it." He noted how justices are always eager to enforce precedent on favored rights, including abortion, but not when it comes to real, foundational rights. "I see no reason that challenges based on Second Amendment rights should be treated differently," wrote an irate Thomas.
Later in 2015, Thomas wrote another dissent joined by Justice Scalia, when the Supreme Court allowed a Seventh Circuit ruling upholding Chicago's assault weapons and magazine capacity bans to stand. Thomas noted how the ruling "ignores Heller's fundamental premise" that the Second Amendment "is an independent, individual right" and lambasted his colleagues on the high court for their "refusal to review a decision that flouts two of our Second Amendment precedents." He famously charged them with treating "the right recognized in Heller as a second-class right."
So where does the whip count on gun rights stand in the nation's highest court today? All evidence shows that Justices Kavanaugh and Gorsuch, despite their wobbling on other conservative issues, are solid on the Second Amendment. So why has the Supreme Court still failed to even take up the appeals, despite the presence of four favorable votes?
In April, the Supreme Court ruled that a challenge to a recent New York City gun control law, in light of the updates that were made post-litigation, was moot. Alito, joined by Gorsuch and Thomas, dissented, asserting that the case was not moot and that the city violated the Second Amendment by continuing to ban the transport of guns outside the city under some circumstances and criticizing the lower courts for violating Heller and McDonald.
While Kavanaugh joined the majority (unsigned) opinion throwing out the lawsuit on a technicality of mootness, in a separate concurrence, he wrote, "I share Justice ALITO's concern that some federal and state courts may not be properly applying Heller and McDonald." He opined that SCOTUS "should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court."
Well, if they have the four votes to grant cert in a more appropriate case before them, why not do so? Yet on June 15, the Supreme Court turned down 10 appeals from gun rights groups in cases where lower courts appeared to be in violation of Heller and McDonald. What gives?
On July 27, Joan Biskupic, CNN's legal analyst and Supreme Court biographer who has deep connections within the institution, answered the riddle. In a tell-all article revealing some of the internal hagglings of the 2019-2020 Supreme Court term, Biskupic reported that Roberts "sent enough signals during internal deliberations on firearms restrictions, sources said, to convince fellow conservatives he would not provide a critical fifth vote anytime soon to overturn gun control regulations. As a result, the justices in June denied several petitions regarding Second Amendment rights."
In other words, the four other justices know that the only thing worse than shirking an opportunity to reverse the lower courts on the Second Amendment is to get up to bat and then strike out, with Roberts as the fifth vote upholding gun control measures.
Which leads us to today. So long as Trump appoints anyone even on par with Kavanaugh, at the very least there should be five votes not only to take up these appeals but to reverse the lower court opinions, while stripping Roberts of any ability to manipulate the process.
Seventh Circuit Judge Amy Coney Barrett, the lead contender for the nomination, has already penned a strong dissent in a gun rights case accusing her colleagues on that panel of treating the Second Amendment like a second-class right. There's our fifth vote.Thus, while I don't have much hope that there will be five votes to uproot some of these bogus rights created by the court from their first-class status in constitutional law, there should at least be enough votes to elevate the Second Amendment from second-class status and let it take a seat right next to the "right to abortion" in first class.
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Blaze Podcast Host
Daniel Horowitz is the host of “Conservative Review with Daniel Horowitz” and a senior editor for Blaze News.