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October 17, 2013

"Is the Supreme Court only willing to work at the fringes of the Second Amendment?"

The question in the title of this post is the main headline of this notable and effective new commentary by Lyle Denniston at the blog of the National Constitution Center. (Hat tip: How Appealing.)  Here are excerpts:

The Constitution’s Second Amendment, the Supreme Court ruled five years ago, protects an individual’s personal right to have a gun for self-defense.  It has returned to the Second Amendment only once since then, in a decision three years ago extending that personal right across the nation, so that it can be used to challenge state and local gun control laws as well as such laws at the federal level.

Since then, more than a half-dozen test cases on the issue have been filed at the court, and each one has been bypassed.  It appears that no one on the court is pushing to return to the issue; it takes four votes on the bench to grant review, and there is no reliable indication that any case has drawn even one vote....

Although lower courts have issued an array of differing and sometimes conflicting decisions (the pattern that usually draws in the Supreme Court), the scope of the Second Amendment right is still in a kind of constitutional limbo.  It remained there on Tuesday, when the Justices turned aside an appeal by a Maryland man, Raymond Woollard, who lives near Baltimore. He once had a permit to have a gun that he could carry outside his home, because he had shown he faced a potential threat from a son-in-law who had shown violent tendencies.  But when he tried to get the permit renewed, he was turned down, on the premise that he had not proved that he still faced a threat to his safety.  The court’s refusal to hear his appeal came quickly, after the Justices’ first fleeting look at the case. That has been the pattern for the past several years....

The message that the Supreme Court has seemed to be sending — at least up until now — is that it is in no hurry to resolve open questions about how far constitutional gun rights extend. It has not even agreed to spell out in a final way the constitutional test that it will apply to judge the validity of any specific gun control law.

As this trend continues, it tends to put an exaggerated emphasis on each new case that reaches the Supreme Court: Will this be the one that will finally get the Justices’ attention; if not, what will it take?  Since the Supreme Court is the sole entity to determine the scope of the Second Amendment right (aside from the legislatures that can put together a clarifying constitutional amendment), judges and legislators across the country have to wonder when they will get new constitutional guidance.

Especially because the Supreme Court left so much unclear about the scope and application of the Second Amendment in Heller, and particularly now that these issues have been "percolating" in lower courts for a half-decade, I think it is getting to be past time for the Justices to take up some "Heller application" cases.  In this setting, the SCOTUS is starting to seem a bit like too many others decision-makers inside the Beltway: apparently unwilling or unable to make hard decisions about how competing priorities ought to be balanced in the development of Second Amendment jurisprudence, the Justices so far are avoiding making any decisions at all.

October 17, 2013 at 01:30 PM | Permalink

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Comments

I wonder if Scalia carries a gun. He is in DC. Does he think he is sainted because he is a Justice? I would bet that he has a gun in his car, home and boat if he has a boat.

Posted by: Liberty1st | Oct 17, 2013 5:46:52 PM

I agree it might be time to clarify the 2A, probably something to do with somewhat conflicting lower court rulings on carrying guns outside the gun, but do think they decided to much in Heller. They should have simply ruled it involved an individual right and sent it back for the factual determination regarding its application to the handgun and the specific provisions. Instead, it provides a short discussion on why those provisions of the law was illegitimate.

Posted by: Joe | Oct 17, 2013 7:55:31 PM

edit: "outside the home"

Posted by: Joe | Oct 17, 2013 7:56:24 PM

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