The Corner

SCOTUS Declines a Few Second Amendment Cases; All Is Not Lost

Per Time magazine:

The Supreme Court decided Monday not to hear appeals to three court rulings that affirm federal and state restrictions on gun purchases, representing a loss for gun rights advocates including the National Rifle Association, which was behind two of the challenges.

In the first case, the NRA challenged a Texas law that prevents 18-20 year olds from carrying handguns in public, Reuters reports. The second NRA case was a challenge to several federal laws and regulations that date back to 1968 and make it illegal for firearms dealers to sell guns or ammunition to anyone under 21.

The third case was on whether consumers have the legal right to challenge laws that regulate the sale of firearms, a challenge filed by Washington D.C. residents who wanted to buy guns in Virginia.

I’m not entirely sure that I would call this a “loss” — at least not in the long term. In 2008, the D.C. v. Heller decision made it clear that the Second Amendment protects an individual right. A follow-up case from 2010, McDonald v Chicago, established that the Second Amendment applies to the states. But, being reasonably vague in nature, these cases left a significant question on the table — to wit, “to what extent does the Second Amendment protect the right to keep and bear arms, and what may governments do to limit that right?” Thus far, the Supreme Court hasn’t weighed in on this question, which has meant that the standard has been applied differently across the country.

In Washington D.C., for example, the courts have construed Heller narrowly, holding that it protects only the right of individuals to buy firearms and to keep them at home. In Chicago, by contrast, the courts have ruled that bans on gun stores and shooting ranges are unconstitutional and must be lifted. On the question of carrying firearms, too, the courts are rather wildly split: the 9th and 7th Circuits have both held that the Second Amendment protects the individual’s right to be issued some form of carry permit and that cities and states within those jurisdictions must move to a “shall-issue” system. The 2nd, 3rd, and 4th Circuits, on the other hand, found the opposite.

There is much to be reconciled. The court’s refusal to take up these three cases (or even comment at all!) is bad news for those who were hoping that they might lead to a clearer decision regarding the Second Amendment’s scope, and, too, for those who are living under laws that they believe to be blatantly illegal. Nevertheless, qui tacit consentire this is not, and that the Supreme Court isn’t biting on these particular issues should not be construed as indicating that they agree with the decisions contained within. (69 years passed between Miller and Heller, remember.) 

The Washington Post reports that:

Activists had urged the court to accept the cases, saying there was a “massive judicial resistance” to expanding gun rights following the Supreme Court’s decisions in 2008 that there is a right to gun ownership for self-defense at least within one’s home. In 2010, the court said the right applies to state and local gun-control efforts, not just those at the federal level.

Eventually, the patchwork will become too much. It could be in the next few weeks. It could be years. Until then, we’re stuck with it. But I wouldn’t run a victory lap quite yet.

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