Bench Memos

Law & the Courts

The Supreme Court Has a Chance to Enforce Heller

The United States Supreme Court building in Washington, D.C. (Carlos Barria/Reuters )

In 2008, the Supreme Court’s decision in District of Columbia v. Heller gave teeth to the Second Amendment, holding that the “right of the people to keep and bear Arms” did, in fact, guarantee citizens the right to “keep” arms in their home for self-defense. Yet one decade later, lower courts continue to resist following Heller. Most shocking, several federal courts of appeals have ruled that whatever the Second Amendment says about the right to “keep” arms in your home, it does not guarantee lawful American citizens the right to “bear” arms in public for their self-defense.

That position is contrary to the Second Amendment’s text, history, and Supreme Court precedent interpreting that text and history. Yet the High Court has thus far sat out of the debate, declining to authoritatively state whether the Second Amendment means what it says and guarantees a right to self-defense both at home and in public.

Fortunately, all of this may be about to change for the better. Last June, Justice Thomas, joined by Justice Gorsuch, lamented the Court’s refusal to make clear that the Second Amendment applies outside the home, criticizing his colleagues for imposing a “hierarchy by selectively enforcing its preferred rights” like the First Amendment but underenforcing the Second Amendment. He described the lower court’s opinion as “indefensible” and the Supreme Court’s refusal to review Second Amendment cases as “inexcusable.”

One month later, the D.C. Circuit — considered by many the second-most-important court in America — disagreed with other federal courts of appeals and invalidated the District of Columbia’s “good reason” or “may issue” regime for licensing the public carry of firearms because that regime denied almost all law-abiding citizens the right to carry firearms in public for self-defense. Because the D.C. Circuit had created a “circuit split” — a division in authority among the appellate courts, the most important criterion for Supreme Court review — many observers thought the Supreme Court would finally decide whether the Second Amendment does indeed guarantee ordinary citizens the right to “bear Arms” in public. Their hopes were dashed: The District of Columbia government declined to appeal the ruling to the Supreme Court, fearful of what an adverse ruling might do to their restrictive gun laws.

Fortunately, in the coming months the Court will likely review multiple petitions presenting the question whether the Second Amendment’s guarantee that the public may “bear Arms” really means that ordinary Americans may carry firearms in public for self-defense. The Court would be wise to defer ruling on the first petition presented to it, instead biding its time until one of the other petitions in the pipeline lands in the Court — and presents the question more ably and cleanly.

The first petition, Rothery v. Blanas, will be considered during the justices’ private conference early next month. This petition presents a poor vehicle, and the Court should avoid it. The case was filed in the lower courts about ten years ago, and the factual record is stale. For example, lawyers opposing the petition have argued to the Supreme Court that one of the two plaintiffs in the case already has a permit to carry a firearm in public, and that the defendant sheriff grants licenses at higher rates than the sheriff did when the complaint was filed a decade ago.

Another critical weakness of the Rothery petition is its muddled presentation of the issues: The petition presents not only the Second Amendment question, which the Court must urgently decide, but also a Fourteenth Amendment equal-protection challenge based on the allegation that retired peace officers and the sheriff’s “political supporters” receive preference in the granting of carry permits. The Second Amendment question is too important to have the parties’ briefing distracted by another legal question of secondary importance.

While the Court might do well to grant Rothery if that were the only case on the horizon presenting the Second Amendment question, that is unlikely to be the case. Another petition is expected later this year or early next year out of the Third Circuit case Rogers v. Attorney General, New Jersey. That petition, in a case being litigated by experienced Supreme Court and Second Amendment lawyers, would also present the critical question relating to citizens’ Second Amendment right to carry firearms. If granted, the petition could be argued next fall, in Justice Kavanaugh’s first full term at the High Court. The Rogers case presents an excellent vehicle for the Court’s review.

In 2015, Justice Thomas, joined by the late Justice Scalia, lamented that the lower courts’ “noncompliance with [the Court’s] Second Amendment precedents” had the effect of “relegating the Second Amendment to a second-class right.” Now, with the Court restored to a full complement of justices and a square circuit split finally presented to it on the most critical outstanding question concerning the scope of the Second Amendment, the right of the people to not only “keep” but also “bear” arms for self-defense may finally be vindicated.

Rabbi Mitchell Rocklin is a postdoctoral research associate at the James Madison Program in American Ideals and Institutions at Princeton University.

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