There is no gentle way to put it. On Monday, June 15, 2020, seven members of the United States Supreme Court ZuckerBoned the Second Amendment.
We will probably never know why seven justices of the Supreme Court dropped to their knees like a two-dollar whore. But they did.
I won’t be around if the reason is discovered by some future historian but if I were still around then it would not surprise me to learn that the justices feared that the leftists currently waging war on the United States on the streets and in the Congress would win.
On Monday, the Supreme Court denied ten Second Amendment cert petitions. Their denial has the effect of leaving the lower court decisions intact.
Six of those cases challenged the heightened need requirement to obtain a permit to carry a handgun in public. Those six cases were out of Massachusetts, New Jersey, Maryland, and Illinois.
Only Justice Thomas wrote a dissent in which Justice Kavanaugh joined, except for Part II. Worse, that dissent was only filed in one of the ten Second Amendment cases turned down, a handgun carry case out of New Jersey.
Part II of Justice Thomas’ dissent began by saying, “This case also presents the Court with an opportunity to clarify that the Second Amendment protects a right to public carry.”
According to a Tweet from UCLA law professor, Adam Winkler, by Justice Kavanaugh not joining in that part of the dissent, Justice Kavanaugh was saying he did not believe that particular case was the right case to decide that question. That is my charitable gloss on his Tweet.
If true then I hope that was because the case, Rogers v. Grewal, did not seek to openly carry a handgun in public. Instead, Rogers sought a permit to carry a handgun which would have allowed him to carry a handgun concealed. Coupled with the fact that Rogers did not seek to openly carry a loaded long gun in public, Justice Kavanaugh may have construed it as a concealed carry case. Justice Kavanaugh clearly stated in his dissent to Heller II and in his confirmation hearing that concealed carry is not a right under the Second Amendment.
Or perhaps the reason Justice Kavanaugh did not join in Part II is because it largely dealt with English law that preceded the English Bill of Rights by several hundred years, the latter preceded the Second Amendment by over 100 years. In short, irrelevant English history.
I suspect the latter is the case. It is odd to join in a dissent to the denial of cert if one thought that the cert petition should be denied. The more likely thing that would have happened if that is what Justice Kavanaugh intended to convey would have been Justice Kavanaugh filing a statement regarding the denial of cert in which he wrote that he agreed with Justice Thomas except for …
But whatever the reason “Why?” there were four other Second Amendment cert petitions that did not involve the carrying of handguns the Court could have granted that would have clarified to the lower courts that they are not to use the contrived “Two-Step” interesting balancing framework most of the Federal circuit courts of appeal have been using.
The lower courts that use the Two-Step framework first decide whether or not the challenged law burdens conduct protected by the Second Amendment. If the court decides that it doesn’t then the inquiry ends and the challenged law is upheld. If the lower court decides that the challenged law does burden conduct protected by the Second Amendment then the court moves to part two where it assigns a sliding scale to the law. In step two, the lower courts decide whether or not that burden is worth having. In some cases, the lower courts do not even decide whether or not the challenged law burdens conduct protected by the Second Amendment. They simply assume that it does and then they uphold the challenged law as a worthwhile burden on the Second Amendment right to keep and bear arms.
It takes the vote of four justices to grant a cert petition.
On April 27, 2020, SCOTUS published a decision in New York State Rifle and Pistol Association v. New York City dismissing that case as moot. Justice Alito wrote a dissent that was joined by Justices Thomas, and Gorsuch objecting to the dismissal of the case. Justice Thomas joined in the dissent in all parts except for Part IV-B.
Justice Kavanaugh filed a concurrence in the dismissal of the case as moot but said, “[I] share JUSTICE ALITO’s concern that some federal and state courts may not be properly applying Heller and McDonald. 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.” Justice Kavanaugh cited his dissent in Heller II.
Justice Kavanaugh, in his dissent as a circuit court judge in Heller II, said the framework the lower courts should use is text, history, and tradition.
Justices Alito’s dissent implicitly expressed a simple framework. Namely, apply the right defined in the Heller decision to the challenged law. No two-step framework, no judicial interest balancing, no substantial burden test. Simply apply the Second Amendment right to the challenged law.
By the way, in the oral argument for District of Columbia v. Heller, Chief Justice Roberts said it seemed to him that it was unnecessary to develop an all-encompassing framework for all Second Amendment cases. The Chief Justice dismissed the case law the Court had developed in First Amendment cases as accumulated “baggage.” The view of the Chief Justice was that the Court should define the Second Amendment right and then simply apply that right to the challenged ordinances.
That is exactly what the court did in deciding District of Columbia v. Heller back in 2008. In 2010, when the Supreme Court applied the right defined in the Heller decision as well as the Second Amendment right in full to all states and local governments, the majority of justices once again rejected judicial interest balancing and rejected applying a watered-down version of the Second Amendment to the states.
We can only speculate as to why there were four justices who were seemingly eager to grant a Second Amendment cert petition on April 27th but were nowhere to be found on Monday, June 15th.
But the fact will always remain that there were not four justices willing to grant any of the ten Second Amendment cert petitions pending before them on Monday. Not only were there not four justices willing to grant any of the Second Amendment cert petitions, but there were also only two justices who put pen to paper criticizing the lower courts for their abuse of the Second Amendment, and only one justice, Thomas, who would have granted any of the ten cert petitions, Rogers v. Grewal.