Lyle Denniston, the National Constitution Center's constitutional literacy adviser, looks at how the Supreme Court is letting the law of gun control develop without being closely managed by the Justices.
THE STATEMENT AT ISSUE:
“The Supreme Court on Monday refused to hear a Second Amendment challenge to a Connecticut law banning many semiautomatic rifles….The decision not to hear the case, not long after the mass shooting in Orlando, Fla., does not set a Supreme Court precedent. But it is part of a trend in which the Justices have given at least tacit approval to broad gun-control laws in states and localities that choose to enact them.”
– Excerpt from a story published online Monday by Adam Liptak of The New York Times following the Justices’ denial of review of the Connecticut case, Shew v. Malloy. The court also separately denied review of a similar law in New York, in the case of Kampfer v. Cuomo. The cases had been decided together by the U.S. Court of Appeals for the Second Circuit, upholding each state’s law.
WE CHECKED THE CONSTITUTION, AND…
The Supreme Court, in exercising its power to define the meaning of the Constitution, can sometimes be bold and creative, but it also can be restrained and even reticent. It has moved between those two poles in its views of the Second Amendment, and it is fair to say that it is now letting the law of gun control develop without being closely managed by the Justices.
In that field, in fact, the Justices appear to be taking seriously – as they have at other times in the past – the lesson handed down to them by Justice Louis Brandeis more than eight decades ago. In a dissenting opinion in the case of New State Ice Co. v. Liebmann, a 1932 case about regulating the commercial sale of blocks of ice for home and business use, Brandeis famously wrote:
“To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This court has the power to prevent an experiment….But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles.”
That is one of the clearest appeals to judicial modesty as there is in constitutional literature. And, occasionally, the court takes that to heart.
One of the great social issues with which the court is now allowing the states to experiment is gun control. Since boldly declaring, in 2008, that the Second Amendment protects a personal right to have a gun and then, in 2010, extending that right to the state and local level, the Justices have almost entirely refused to second-guess the states as they regulate – and, at times, prohibit -- access to guns.
In fact, in just one instance in the past six years has the court raised doubts about a gun control measure. In March, it ordered Massachusetts state courts to reconsider a decision that the Second Amendment does not protect the personal possession of a stun gun (a weapon that shoots a potentially disabling electrical charge). That is far from significant intrusion into state powers.
On Monday, the court followed its now well-established pattern: it declined to hear Second Amendment challenges to two states’ flat bans on assault weapons – the kind of gun used in several of America’s recent mass shootings, including the massacre at an Orlando nightclub. And, as usual, the court provided no explanation for choosing to stay on the sidelines. In fact, no member of the court issued a dissenting opinion to provide a glimpse into the court’s reasoning.
That does not mean that the court itself has upheld those restrictions. It often reminds the public that denial of review does nothing except leave intact a single lower court decision, applying to that one case.
The court has chosen to bypass all other cases trying to get new guidance on what kinds of weapons come under the Second Amendment, on whether the right to a gun is restricted to having a weapon for self-defense, on whether the right applies anywhere outside the home, and on what kind of “sensitive places” should be out of bounds for those carrying guns, either openly or concealed.
The net effect of the Justices’ reluctance to step back into the constitutional fray is that, to know the extent of one’s gun rights, there is no substitute for checking whether a state or a city government has passed some restriction; those will show just what is allowed and what is forbidden. In only a few states, owning a military-style semi-automatic gun with a large magazine of bullets is forbidden, outright.
In many jurisdictions, there are now laws on the books variously allowing or restricting access to guns, through licensing provisions. Some of those laws require proof of a good reason to worry about one’s safety before a license can be obtained.
Across the country, laws differ widely on public carrying of guns – in the open or concealed, loaded or unloaded. Some public places are off-limits to people with guns, others are open to them. And, laws vary widely on when the Second Amendment right can be lost if one is convicted of various crimes. (Some time in the next few days, the Supreme Court will be releasing an opinion in a case – Voisine v. United States -- seeking clarification of the scope of a federal law barring gun possession after a domestic violence conviction. But, in agreeing to hear that case, the Justices explicitly refused to consider the constitutionality of that federal law under the Second Amendment.)
However reluctant the Justices have shown themselves to be to return to the examination of the Second Amendment, they will continue to have opportunities to do so. There are very energetic advocacy groups yearning to get a new case before the court, and they surely will keep trying.
