Despite Gorsuch, is SCOTUS Backtracking on the Second Amendment?

On June 26, 2017, the SCOTUS declined certiorari to Peruta v. California, a case that met all the criteria for a review.

Why? After Heller and McDonald, this seemed like the perfect opportunity to clarify themselves, but during the entire legal process, it seemed the courts were acting as though neither were applicable.

The following article is a bit scholarly, but it explains what may be behind this phenomenon. It’s worth bookmarking in your browser for future reference. It is reprinted here with permission of the author, Mike Rana, who publishes his own blog, RightWinger.buzz.

Generally, the high court uses a few criteria to determine what to accept: When there are multiple Courts of Appeal in conflict, multiple state Supreme Courts in conflict, and important federal questions to be answered. Another consideration is how the case at hand will impact national policy.

The Second Amendment was included in the Bill of Rights at ratification. In this nation’s 228+ year history, the justices have only been confronted twice with it. Heller affirmed the civilian right to bear arms for self-defense in the home, but only as applied to the federal government. McDonald affirmed Heller and incorporated that right to the states, forbidding any city or state from completely banning firearms.

In his and Justice Thomas’ dissent, they said:

“Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively. Twenty-six States have asked us to resolve the question presented, see Brief for Alabama et al. as Amici Curiae, and the lower courts have fully vetted the issue. At least four other Courts of Appeals and three state courts of last resort have decided cases regarding the ability of States to regulate the public carry of firearms. Those decisions (plus the ones below) have produced thorough opinions on both sides of the issue.”

See Drake, 724 F. 3d 426, cert. denied sub nom. Drake v. Jerejian, 572 U. S. ___ (2014); 724 F. 3d, at 440 (Hardiman, J., dissenting); Woollard v. Gallagher, 712 F. 3d 865 (CA4), cert. denied, 571 U. S. ___ (2013); Kachalsky v. County of Westchester, 701 F. 3d 81 (CA2 2012), cert. denied sub nom.Kachalsky v. Cacace, 569 U. S. ___ (2013); Madigan, 702 F. 3d 933; id., at 943 (Williams, J., dissenting); Commonwealth v. Gouse, 461 Mass. 787, 800–802, 965 N. E. 2d 774, 785–786 (2012); Williams v. State, 417 Md. 479, 496, 10 A. 3d 1167, 1177 (2011); Mack v. United States, 6 A. 3d 1224, 1236 (D. C. 2010).

The Court’s decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right. See Friedman v. Highland Park, 577 U. S. ___, ___ (2015) (Thomas, J., dissenting from denial of certiorari) (slip op., at 6) (“The Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions”); Jackson v. City and County of San Francisco, 576 U. S. ___, ___ (2015) (same). The Constitution does not rank certain rights above others, and I do not think this Court should impose such a hierarchy by selectively enforcing its preferred rights. Id., at ___ (slip op., at 1) (“ Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document”).

The Court has not heard arguments in a Second Amendment case in over seven years—since March 2, 2010, in McDonald v. Chicago, 561 U. S. 742. Since that time, we have heard arguments in roughly 35 Second Amendment-related cases where the question presented turned on the meaning of the First Amendment, and 25 cases that turned on the meaning of the Fourth Amendment. This discrepancy is inexcusable, especially given how much less developed our jurisprudence is with respect to the Second Amendment.”

While one could easily write a book on how the judicial branch has cherry-picked from the Second Amendment, but has vigorously protected other fundamental rights (and unconstitutionally created and gone to lengths to defend others) it’s not hard to see how gun rights seem to be the one that legislatures and courts want to ignore.

I offer three hypotheses on why the Court decided to deny certiorari:

GRANTING CERTIORARI USUALLY IMPLIES A CHANGE IN POLICY IS POSSIBLE

Where the SCOTUS is the court of last resort for the nation and has a pint-sized docket compared to the breadth of petitions it receives, typically they only take major things. The only exception to this rule might be Bush v. Gore.

The issue at hand in Peruta is whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

Precedent has only held that cities and states cannot infringe on the right to bear arms, but as Hellerand McDonald tell us, states are allowed to enact reasonable regulations on that right. As it is right now, five states have banned open carry: California, Florida, Illinois, New York, and South Carolina, but allow concealed carry with a permit.

For those that want a popsicle headache, the Peterson v. Martinez decision ruled the following:

  • Concealed carry is not a protected right under the Second Amendment due to 19th century case law that has long prohibited the practice.
  • Mr. Peterson’s claim that he’s disarmed when traveling to another state because his permit is not recognized isn’t unconstitutional because the state he traveled to at the time of the claim allowed open carry.
  • Even if Second Amendment case law yielded to protecting the right to concealed carry, the state has an interest in public safety by regulating the issuance of permits on the grounds of legal suitability (I.E. not prohibited by state or federal law).

THEY WOULD HAVE TO ACKNOWLEDGE THAT SOME RIGHTS ARE MORE VALUABLE THAN OTHERS

The Court has had no issue bringing the iron fist to campus administrators who create free speech policies against disagreeable views. The same court has upheld offensive speech such as flag burning and Westboro without flinching, but they seem to be allergic to a piece of metal on the hip.

Other notable rulings include:

The Court has ruled that religious employers can receive an exemption from the healthcare mandate.

The Court has afforded wide latitude to the press in terms of what they publish.

The Court has ruled that abortion is a fundamental right as it applies to privacy and medical treatment.

The Court has ruled on things relating to cellphone searches, vehicle searches, not concocting reasons to stop someone just to pry further, and prohibiting a traffic stop from lasting longer than is reasonable to enforce the violation the person committed.

Multiple lower courts have ruled repeatedly that campus administrators cannot ban political speech on the grounds of a divergent viewpoint.

The Court has ruled that marriage is a fundamental right due to free association and the freedom of choice.

The Court has ruled that speech construed as offensive speech is still free speech.

You can see how these rulings could impact Second Amendment rights, if the court were intellectually consistent. While the Courts haven’t defended gun rights as vigorously as they have free speech, religious freedom, search and seizure, due process, and going as far as equal protection challenges, they have cordially taken cases involving each.

Although Peterson was decided in 2013, the legal framework hasn’t changed. Concealed carry is still NOT considered a constitutionally-protected form of carry in SCOTUS case law. While the right to carry has been ruled acceptable, it hasn’t been ruled protected.

Some state supreme courts since Peterson have acknowledged, much like Justice Gorsuch did, that the right to carry is inferred from the right to keep and bear; the presence of inconsistent acknowledgement in other courts made Peruta a good candidate for a hearing, and this latest dismissal complicates policy.

For instance:

  • The Constitution protects the right to bear arms, but only with weapons that were in use at the time of the amendment’s passing.
  • The right to bear arms is a fundamental right, but public safety concerns allow the state to regulate it.
  • Citizens cannot carry firearms into government buildings because on the grounds that all should feel safe accessing.
  • Permits are a constitutional exercise of the government’s compelling interest of ensuring public safety and ensuring that prohibited persons aren’t able to purchase firearms.
  • Since a state allows one form of carry, it’s not a total infringement, as state regulations are reasonable for public safety.
  • States aren’t required to recognize each other’s permits on the grounds that one state’s policies and training requirements may be inferior to another’s.

THEY WOULD RATHER THE STATES DEAL WITH IT

Imagine if your right to petition your state representative required a permit costing $100 in Florida, and was banned unless you held an affiliation with an organization in Washington?

Imagine if your right to be free from search and seizure was fully protected in Montana, but didn’t apply to computers or cellphones in Nebraska?

Imagine if the Boston Globe criticized the governor of Massachusetts and it was protected speech, but the Los Angeles Times mocked California’s governor’s policy on climate change, and the blogger or journalist was charged with a hate crime?

I can’t think of a court in the nation that would tolerate or uphold any of those scenarios since each one is widely understood to be a protected right. Ironically, the Court itself acknowledges that gun rights aren’t an inferior second-class right, yet, here we are.

Given the case law behind our disfavored right, state legislatures have had to do the brunt of the work. Considering twelve states have enacted permit-less carry with a dozen more with proposals out there, three-quarters of the states allow open carry without a permit, only five states outright banning open carry, and with each successive legislative session, more states are dismantling gun control schemes, what more would the courts need to do considering they’re not authorized or empowered by the Constitution to make law.

While the case law is correct in that no right is absolute, there is no enumerated fundamental right more cherry picked than the right to bear arms – something that needs to change.

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