The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Twelve Years After Heller
The Supreme Court will continue to ignore the Second Amendment until it receives a petition it has to grant.
D.C. v. Heller was decided on June 26, 2008. I remember the day well. I had just finished my second year of law school, and was working as a summer associate. My firm flew the summers to the home office in Los Angeles for some training. (Oh the heady days of big law! The legal market imploded by the end of that summer).
I remember waking up quite early, west cost time, so I could read the decisions before work started. I had worked as a research assistant for Professor Nelson Lund's amicus brief in Heller. At the time, George Mason School of Law was ground-zero for Second Amendment scholarship. I was ready.
Around 7:00 a.m. local time, Heller dropped. At first, I was ebullient. Finally, a decision that recognized a right to keep and bear arms! But then I started to read the decision. And I reached the dicta about "sensitive places" and "dangerous and unusual weapons." Where did that come, I thought? No matter. Scalia won! Over the ensuing months, the Second Amendment camp was conflicted. Many were enthused with a victory. Others, like Lund, warned that the limiting dicta could undermine any future legal challenges.
Immediately after Heller was decided, McDonald was filed. And two years later, the Court held that the Second Amendment was incorporated. Chicago residents like Otis McDonald could celebrate. But Justice Alito's plurality said nothing about the scope of the right. In July 2010, I lamented "the epic failure of Heller and McDonald." I wrote, "Without setting any tier of scrutiny, or noting which party bears the burden of proving a constitutional violation, the lower courts would be left uncertain." I was heavily criticized by members of the Second Amendment camp. They warned that my blog might undermine future legal challenges. If only.
Soon enough, it became clear that Justice Breyer's dissent was the shadow majority opinion. Lower-court judges of all stripes would defer to all manner of gun control laws. By that point, even conservative Judges like Frank Easterbrook began to review gun laws with deferential balancing tests. The future did not look promising.
Give it time, we were told. Wait a few years and the Court would eventually clarify the doctrine. The Second Amendment is now normal constitutional law, we were assured. And so time lapsed. 2011. 2012. 2013. 2014. Nothing.
Finally, in 2015, Justices Thomas and Scalia wrote two dissents from denial of cert. They called out their colleagues out for abdicating the Second Amendment. In December 2015, I wrote in National Review, "The lower courts continue to whittle away the Supreme Court's rulings in District of Columbia v. Heller and McDonald v. Chicago, while seven justices stand by quietly, refusing to intervene."
Three months later, Justice Scalia passed away. It looked all but certain that Hillary Clinton would replace him. Academics on the left debated whether it was better to overrule Heller, or simply limit the rule to keeping guns at home. (The latter strategy would have been much more prudent). Yet, Donald Trump promised he would appoint judges who were strong on the Second Amendment. And, in large part on that promise, he won. And he appointed two more Justices to the Supreme Court.
In 2017, Justice Thomas dissented in Peruta v. California. That case involved public carry. Only Justice Gorsuch joined him. And in January 2019, the Court finally grants NYS Rifle & Pistol Association. The Court chose the most narrow and insignificant Second Amendment decision imaginable. A victory in that case would hardly make a dent in gun control laws.
But it was not meant to be. New York engineered a flawless effort to moot the case. And several Senators threatened to pack the Court if the case was not dismissed on mootness grounds. (Query which Senator has had more of an impact on the Roberts Court: Mitch McConnell or Sheldon Whitehouse). And the case was dismissed on April 27, 2020.
Justice Alito dissented, joined by Justices Gorusch and Thomas (in part). He too lamented how the lower courts have interpreted the Second Amendment: "We are told that the mode of review in this case is representative of the way Heller has been treated in the lower courts. If that is true, there is cause for concern."
Justice Kavanaugh, the newest member, concurred in the dismissal. But he said the "The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court." Did Kavanaugh think there were four votes for a grant? If so, he was played.
After NYS Rifle & Pistol, I shared some optimism that the Court would soon grant a Second Amendment case. There were ten cases floating on the docket. By my count, there were four votes to grant: Thomas, Alito, Gorsuch, and Kavanaugh. Certainly, the Court could grant cert on one of them.
On Monday, June 15, 2020, the Court released its orders at 9:30 ET. The bad news came quickly. The Court had denied certiorari in all ten cases. All of them. The Court also denied review in several qualified immunity cases that had been pending. Query if there was some sort of quid pro quo between the Court's actual and de facto Chief Justices, Roberts and Kagan: I'll vote to deny guns if you vote to deny QI. (See the WSJ's editorial about the Kagan Court).
Justice Thomas wrote a dissent in one of the cases, Rogers v. Grewal. This case challenged New Jersey's public carry law. (I've posted an edited version of the case here.) He repeated a familiar refrain:
The text of the Second Amendment protects "the right of the people to keep and bear Arms." We have stated that this "fundamental righ[t]" is "necessary to our system of ordered liberty." McDonald v. Chicago (2010). Yet, in several jurisdictions throughout the country, law-abiding citizens have been barred from exercising the fundamental right to bear arms because they cannot show that they have a "justifiable need" or "good reason" for doing so. One would think that such an onerous burden on a fundamental right would warrant this Court's review. This Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights. And it seems highly unlikely that the Court would allow a State to enforce a law requiring a woman to provide a justifiable need before seeking an abortion. But today, faced with a petition challenging just such a restriction on citizens' Second Amendment rights, the Court simply looks the other way.
Justice Gorsuch did not join the dissent. Neither did Justice Alito. Justice Kavanaugh only joined Parts I and III of the dissent. Part II offered an excellent historical overview of the right of public carry. It isn't clear what Justice Kavanaugh found objectionable.
And so it continues. Twelve years after Heller, we are in the exact same place. The government cannot ban the possession of handguns in the home, but all other gun control laws are reasonable. Keep in mind that only D.C. and Chicago banned handguns outright. Those rulings effected only those two laws. That's it! I am sympathetic to Robby George's post, which analogized the judicial conservatives on the Court to the Washington Generals.
There have been a handful of favorable decisions in the lower courts, almost all of which were reversed. Justice Thomas praised these jurists:
Consistent with this guidance, many jurists have concluded that text, history, and tradition are dispositive in determining whether a challenged law violates the right to keep and bear arms. See, e.g., Mance v. Sessions (CA5 2018) (Elrod, J., joined by Jones, Smith, Willett, Ho, Duncan, and Engelhardt, JJ., dissenting from denial of reh'g en banc); Tyler v. Hillsdale Cty. Sheriff's Dept. (CA6 2016) (Batchelder, J., concurring in most of judgment); Gowder v. Chicago (ND Ill. 2012); Heller v. District of Columbia, (CADC 2011) (Heller II) (Kavanaugh, J., dissenting).
In Mance v. Sessions, seven judges on the en banc Fifth Circuit were willing to review federal gun control laws with meaningful scrutiny. Seven! But they were a vote short. The Mississippi seat remained empty for far too long, and that vote failed. Soon that seat will be filled.
I am convinced the only way to change the Second Amendment status quo is for the Fifth Circuit, now at full strength, to give the Chief Justices a petition they have to grant. I would much rather lose a 5-4 decision, or 6-3, and know where the Justices stand, than to keep showing up in a fixed match to the Globetrotters.
