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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
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Marccophoto/Getty

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.