SCOTUS once again chips away at gun rights

While everyone is waiting with bated breath for the super legislature — aka the Supreme Court — to issue its opinions on cases involving abortion, affirmative action, and immigration, the big news from today is what it declined to consider. Following a disturbing pattern of allowing lower court decisions chipping away at the landmark Heller decision to stand, the high court declined to grant cert to petitioners in the case involving the sweeping gun and magazine bans in New York and Connecticut (New York State Rifle and Pistol Association el al. v. Cuomo).

Following the Sandy Hook shooting, states like New York and Connecticut banned a bunch of semi-automatic rifles containing cosmetic features that make them look scary. They also require forced registration of those firearms already owned by private citizens. Additionally, they banned magazines that hold more than 10 rounds, and in the case of New York, mandated that they not be loaded with more than seven rounds. Initially, New York banned all magazines that hold more than seven rounds, but had to modify the law because most manufacturers don’t even make such small magazines except for sub-compact carry pistols.

While almost every circuit court found a constitutional right to gay marriage, none of them thus far have found a constitutional right to own common guns and ubiquitous magazines, thereby upholding the laws in the blue states. The Second Circuit upheld all the provisions of the New York and Connecticut laws except for the seven round load rule. Despite the Heller decision’s clear constitutional finding that individuals have a right to own and bear common self-defense weapons, the Second Circuit felt that a scary looking pistol grip on a commonly used weapon deems it a substantial governmental interest — enough to limit the individual right to own such a weapon. On Monday, the Supreme Court refused to hear an appeal of the Second Circuit’s decision.

Typically, one cannot read too much into the Supreme Court’s decision not to grant cert to those seeking to overturn a lower court’s decision. After all, justices have limited time and resources and cannot hear every appeal. Moreover, they often like to wait for a circuit split before rendering a final decision. But following the Heller decision affirming the plain meaning of the most sacred of inviolable rights, how can they continuously allow circuit after circuit to chip away at Heller — both by banning common guns and magazines and by categorically upholding plenary bans on right to carry? They have already refused to consider two other appeals on cases banning gun ownership and have not granted cert to any case where a circuit court has upheld bans on carrying outside one’s home. The Second, Third, Fourth, Ninth, and Tenth Circuit Courts have all ruled there is no right to self-defense outside the home — in contravention of the plain language of the Heller decision.

Indeed, in the case of lower courts upholding sweeping gun bans, the silence of more than three justices willing to grant cert (it takes four) is deafening. As Justice Thomas has noted in his dissent on the denial of cert on the two previous assault weapons bans, the other justices (presumably Roberts and Kennedy included) are clearly allowing the Second Amendment to become a second-class right. [1] How can Kennedy and Roberts decline to join in the vote to hear the appeal when the lower courts are vitiating the plain implications of Heller? In Heller, the Supreme Court made it clear that governmental interest cannot be factored in to mitigate an individual right to own or bear firearms because the Second Amendment “is the very product of an interest-balancing by the people,” and “[t]he very enumeration of the right takes out of the hands of government… the power to decide on a case-by-case basis whether the right is really worth insisting upon.” [2] How then can they allow the lower courts to uphold sweeping gun bans on the basis of a government interest for public safety, especially in the case of the Seventh Circuit which upheld the Illinois assault weapons ban simply on the basis that it “may increase the public’s sense of safety.” [3] Those pistol grips and picatinny rails on the rifle are sure scary. If looks could kill! Maybe we should limit the First Amendment’s right to assemble in large numbers because large crowds scare people.

The ongoing debate over gun rights in the courts demonstrates once again that even as the courts create new super rights for favored classes or for foreign nationals, they can’t be relied upon to protect the most basic rights of Americans. It also demonstrates that even if we succeed in filling the current Supreme Court vacancy, given that the lower courts are unanimously against gun rights, we can’t even count on five justices willing to overturn them. The judiciary is a dead end for those seeking preservation of constitutional rights in the long run.

[1] Espanola Jackson, et al. v. City and County of San Francisco, California, Et al, No. 14-704 (9th Cir. June. 8, 2015); 76 U. S. ____ (2015) (cert. denied, Thomas, J., dissenting). Arie S. Friedman, et al. v. City of Highland Park, Illinois, No. 15-133 (7th Cir. Dec. 7, 2015); 577 U. S. ____ (2015) 577 (cert. denied, Thomas, J., dissenting).

[2] District of Columbia v. Heller 554 U. S. ____634,635 (2008).

[3] Friedman v. City of Highland Park, 784 F. 3d 406, 412 (7th Cir. 2015).