Constitution Check: Are gun rights withering away?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the Supreme Court’s decision to deny a test case from gun owners in San Francisco.

THE STATEMENT AT ISSUE

“The dire warnings that the U.S. Supreme Court’s recognition of an individual right to bear arms would lead to a wholesale voiding of gun-control law seem to have been overblown. The most recent case in point: the Justices on Monday declined to review a San Francisco gun law that was remarkably similar to one they struck down in a landmark ruling in 2008 [District of Columbia v. Heller]….To be fair, the Heller ruling did contain some caveats that some people might have paid more attention to…Turns out most gun laws fit within these categories. But arguably not San Francisco’s, so if that law didn’t get voided by the Justices, what else is left of Heller?”

– Patrick Oster, a writer for Bloomberg News, in an online column on June 9, under the headline: “Supreme Court’s Landmark U.S. Gun-Rights Ruling Not So Landmark.” The story analyzed the Justices’ refusal to review the constitutionality, under the Second Amendment, of a San Francisco ordinance limiting gun owners’ access to their handguns within the home.

WE CHECKED THE CONSTITUTION. AND…

Constitutional change usually does not happen quickly in America, whether it is a change that brings a new understanding, or a change that abandons an existing doctrine. It thus is usually premature to read too much into an action by the Supreme Court that seems to be profound, but may not turn out to be in the course of constitutional time.

But if the court acts in a series of steps that, together, have the look of a trend, it may be appropriate to ponder a larger meaning in those steps. That is what may well be happening now with one of the Constitution’s most controversial provisions: the Second Amendment. Part of the Bill of Rights put into the Constitution in 1791, it guarantees a “right to keep and bear arms.”

It is worth remembering, as a cautionary note, that it took 217 years for that amendment to be expanded by the court to include a personal right to have a gun – the result reached seven years ago in the case of District of Columbia v. Heller.   Always before, it had been generally understood (except by gun rights enthusiasts) to be only a community right to arm for common defense.

There is no risk, none whatever, that the Supreme Court will change its mind and abandon the personal right view of the Second Amendment. Perhaps the most that can be said with any confidence is that, in the years since the Heller decision came out, the Justices have been willing to let lower courts do the sorting on just how far a personal right should extend.

Still, that sorting process has not been a promising one for gun owners and the advocacy groups to which many of them belong, the National Rifle Association and the Second Amendment Foundation. In case after case, now reaching a considerable number, the lower courts have been very cautious about extending the right to situations outside one’s own home. In fact, at this point, the most important question about the personal right to “bear arms” is whether it applies at all beyond the home.

And that is the question to which the Supreme Court has refused repeatedly to give an answer. The question incorporates the secondary issue of whether the Amendment applies at all to the carrying of guns in public in a concealed way, and to carrying them out in the open on public streets or in public gatherings.

There is another underlying issue to which the Justices have yet to give a conclusive answer: just what kind of public safety concerns are sufficient to justify gun controls as a general matter? Almost without exception, any attempt by government at any level to limit access to guns has relied upon the need to protect public safety, short of an outright ban on guns of all types (the kind of ban that, it actually is clear, the Supreme Court will not tolerate).

Several gun owners in San Francisco were the latest to take a case to the Supreme Court to try to get an answer to that underlying question. Based upon the city government’s concern about public safety within the home, when easy access to handguns may lead to violence or accidents, San Francisco adopted an ordinance that requires handguns kept at home must either be in a locked box or have a trigger lock, with the only exception that an occupant who was 18 years old or older could actually carry the gun on their person.

The challengers to that ordinance reminded the Justices that, in the Heller decision, the court had ruled that – within the home – an individual had a right to have the gun in a condition that would allow its immediate use in case of an emergency. Surely, their lawyers argued, the San Francisco ordinance could not be reconciled with that part of the Heller decision.

The Supreme Court, following its now well-established pattern, simply denied review of that case on Monday. The appeal drew the publicly noted support of only two members of the court – Justice Clarence Thomas, who wrote a dissent joined by Justice Antonin Scalia.   It would have taken the votes of four Justices to grant review.   Failing to get that number, the appeal was denied, and the San Francisco ordinance was left untouched, with no explanation from the court

“Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense,” Justice Thomas wrote, “lower courts, including the ones here, have failed to protect it.” He added that the lower court decision in favor of the San Francisco ordinance “is in serious tension with Heller.”

Because of that argument, the denial of review in this case might well mean more than all of the other denials of appeals by the Justices in gun-rights cases in recent years. There is apparently a deep-seated resistance, among members of the court, to their reopening of the Second Amendment controversy. It might be speculated that there is a sense within the court that it would be very hard to assemble a majority behind a new clarification of this personal right, so the task should be left, case by case, to lower courts.   And maybe they are awaiting a “perfect” test case, although it is hard to imagine what such a case might be.

Whatever the reason for remaining on the sidelines, the court has left the Second Amendment in what almost certainly is a diminished state – at least for the time being.