The most likely explanation is that neither of the Court’s ideological factions was confident enough of Roberts’s support to risk granting certiorari.
On Monday, the Supreme Court declined to review all ten of the Second Amendment cases it had pending on its docket. Though the cases presented different fact patterns and procedural postures, the Court simply refused to weigh in on any of them. There seems to be one likely reason: Chief Justice Roberts does not want the Court to take a stance on the Second Amendment. We know because it only takes four justices to agree to hear a case but five to reach a decision once a case is heard — and there are four justices on record as being in favor of the Court’s reviewing Second Amendment issues.
Justice Thomas has been dissenting from the Court’s refusal to review those issues for years, and he did so again on Monday, writing to protest the Court’s decision to pass on Rogers v. Grewal, a case addressing New Jersey’s unconstitutional handgun-carry-permit laws:
This case gives us the opportunity to provide guidance on the proper approach for evaluating Second Amendment claims; acknowledge that the Second Amendment protects the right to carry in public; and resolve a square Circuit split on the constitutionality of justifiable need restrictions on that right. I would grant the petition for a writ of certiorari.
Justice Alito authored the landmark 2010 McDonald v. Chicago opinion, which incorporated Second Amendment rights to cover the states, and recently filed a scathing dissent to the Court’s decision in New York State Rifle & Pistol Association v. City of New York:
Twelve years ago in District of Columbia v. Heller . . . we held that the Second Amendment protects the right of ordinary Americans to keep and bear arms. Two years later, our decision in McDonald v. Chicago . . . established that this right is fully applicable to the States. Since then, the lower courts have decided numerous cases involving Second Amendment challenges to a variety of federal, state, and local laws. Most have failed. We have been asked to review many of these decisions, but until this case, we denied all such requests.
Alito’s dissent goes on to review the underlying merits of the case and argue that the New York City gun-control law at issue is certainly unconstitutional.
Justice Kavanaugh is also in favor of the Court’s weighing in on Second Amendment issues. He wrote a well-known dissent in Heller II, a follow-up case stemming from the Heller decision Alito references, in which he chastised the D.C. Circuit’s reasoning and directly applied the Supreme Court test that was established in Heller. More recently, he joined Thomas’s dissent against the Court’s refusal to hear Rogers, and wrote, in a concurrence to the New York State Rifle decision:
I share Justice Alito’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.
Finally, Justice Gorsuch, while being quieter on the subject, has voiced his support for a review of Second Amendment issues as well: He has joined a couple of dissents penned by Justices Thomas and Alito, in Peruta v. California and New York State Rifle, respectively.
If you’re counting along at home, that’s four Justices — Thomas, Alito, Gorsuch, and Kavanaugh — in favor of the Court’s reviewing Second Amendment issues. Those four together can grant certiorari in any case they wish. One presumes that the only reason they didn’t do so in one of the ten Second Amendment cases the Court passed on Monday is that they were unsure how Chief Justice Roberts would vote once the cases were heard.
To be clear, the Court wasn’t in want of choice. The ten cases pending before it covered issues ranging from New Jersey’s handgun-carry regulations (Rogers) to California’s presumptively unsafe handgun law (Pena v. Horan) and Massachusetts’ “assault weapon” and “high-capacity magazine” bans (Worman v. Healey).
Some of the ten also showed a clear circuit split — a conflict between two or more courts of appeals in the nation as to how to decide a similar or identical issue — which tends to make the Court far more likely to hear a case. In this instance, there was and is a clear split between circuits on the applicability of the Second Amendment outside the home.
So, ruling out votes and issues, the remaining roadblock would seem to be Chief Justice Roberts. What is unclear is why.
Some have speculated that Roberts wants to avoid risking the Court’s reputation on a controversial case during a tense political cycle. But, if the Court had granted certiorari in one of these cases today, the case would have been briefed over the summer, argued in late 2020 or early 2021, and decided in early or mid 2021, well after the next president had been elected.
Does Roberts actually align with the four progressive-leaning justices on the Court when it comes to the Second Amendment? Not likely. Remember, the four progressive-leaning justices can grant review of a case just as the four conservative-leaning justices can. Given that they didn’t on Monday, they likely don’t believe Chief Justice Roberts is on their “side” of the issue.
The conclusion we’re left with is that Chief Justice Roberts doesn’t want the Court to weigh in on the Second Amendment right now, and neither the four conservative justices nor the four progressive justices were confident enough of his siding with them on the issue to risk granting certiorari in any of the ten cases.
Keep in mind, when the chief justice is in the majority on a decision, he gets to pick who writes the opinion.If Chief Justice Roberts is the swing vote in a case, he’ll be in the majority however he decides, and could easily assign himself the opinion. Given that the rest of the Court is evenly split, no matter how he drafted it, the justices who agreed with the outcome of the opinion would almost have to sign on, regardless of its reasoning, and that could spell trouble.
For now, we will have to rely on the decisions of the circuit courts in gun-rights cases. But while it’s unclear what the impact of this week will be on the future of Second Amendment jurisprudence, those of us committed to defending Second Amendment-protected rights will not give up the fight.