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The Supreme Court’s Second Amendment Surprise

Despite broad expectations for the justices to take on a new gun rights case, they rejected all of them.

June 18, 2020

Since the Supreme Court sidestepped making a signi­fic­ant decision in a much-watched Second Amend­ment case from New York in April, all eyes shif­ted to 10 other gun cases that the justices were consid­er­ing. Many gun advoc­ates hoped — and gun control support­ers feared — the justices would take one of those cases in order to expand the right to keep and bear arms. But the justices turned down all 10 cases on Monday. To grasp the signi­fic­ance of that outcome, we need to rewind to 2008, when the Court upen­ded gener­a­tions of federal case law.

In District of Columbia v. Heller, the Supreme Court declared for the first time an indi­vidual right to possess a hand­gun at home for self-defense. Two years later, in McDon­ald v. City of Chicago, it applied that indi­vidual right to state and local govern­ments. In his Heller dissent, Justice John Paul Stevens said he feared that gun policies would be knocked down like “domin­oes.” But things didn’t pan out that way. Judges on lower courts — conser­vat­ive and liberal alike — over­whelm­ingly have agreed that most fire­arm restric­tions are consti­tu­tional. Indeed, judges rely on Heller itself to uphold chal­lenged laws.

The judi­cial consensus that Heller leaves room for so much regu­la­tion is deeply dissat­is­fy­ing to gun advoc­ates, who have repeatedly proclaimed the courts are engaged in what the National Rifle Asso­ci­ation called a “pervas­ive pattern of stub­born resist­ance.” Time and again, gun advoc­ates have sought Supreme Court inter­ven­tion. Time and again, the justices have turned down those entreat­ies, leav­ing in place chal­lenged gun laws.

When Donald Trump was elec­ted pres­id­ent things shif­ted at the high court. Trump campaigned on appoint­ing gun-friendly justices and openly worked with NRA lead­er­ship to select them. First came Neil Gorsuch. Then came Brett Kavanaugh. Just months after Kavanaugh joined the Court, the New York Second Amend­ment case was added to the docket.

The fact that the recom­posed Court took a Second Amend­ment case was notable. Many believed the justices were primed to begin the Second Amend­ment expan­sion project long sought by advoc­ates. The case accep­ted by the justices chal­lenged a New York City restric­tion on bring­ing a registered hand­gun to second homes and shoot­ing ranges outside the city. It provided a plat­form to revamp the rules and stand­ards applied in the lower courts to uphold regu­la­tions. It also presen­ted an oppor­tun­ity to extend gun rights into the public square, some­thing not at issue in Heller and McDon­ald. Instead, since the city repealed its policy and, for good meas­ure, New York State passed a law that over­rode it, the justices sent the case back to the lower courts without decid­ing anything of substance.

Gun advoc­ates were deprived of a victory, but the conven­tional wisdom about the Court’s Second Amend­ment appet­ite remained: the justices simply needed to pick a new case and they had 10 in front of them. Indeed, Kavanaugh took the uncom­mon step, espe­cially for the new guy, of penning an opin­ion that expli­citly called on his more senior colleagues to take one of them. Despite a setback for the gun rights move­ment, it still seemed inev­it­able the Court would soon address the Second Amend­ment.

And therein lies the signi­fic­ance of Monday’s decision to turn down those 10 cases. Change seemed a fore­gone conclu­sion, but things remained the same. The pattern we’ve witnessed over the past decade repeated itself perfectly: the Court refused to inter­vene, Justice Clar­ence Thomas cried foul (a “decade-long fail­ure to protect the Second Amend­ment”), and some advoc­ates ampli­fied that senti­ment (“for shame”).

One possib­il­ity that I raised in April is that cracks have opened within the conser­vat­ive bloc of justices in Second Amend­ment cases. In resolv­ing the New York case, some seemed more motiv­ated to revisit Heller and McDon­ald. They also seemed divided on whether today’s gun viol­ence is relev­ant to decid­ing Second Amend­ment cases, or whether judges should apply origin­al­ism and prior­it­ize under­stand­ings from the 18th century.

Of course, few know what is happen­ing during the Court’s confer­ences. But this week those cracks appear more real than ever, and the theory that Second Amend­ment cases are in season is in seri­ous doubt.

Eric Ruben is an assist­ant professor of law at SMU Dedman School of Law and a Bren­nan Center fellow.