The Supreme Court made a clean sweep earlier today refusing to hear 10 Second Amendment cases that they had held pending the outcome in NYSRPA v. City of New York. The cases included ones seeking to define what the right to "bear" arms entails and also several ones that involved government bans on certain types of firearms—specifically so-called "assault weapons" and in a California case, handguns.
A dissent in the refusal to hear a New Jersey carry case authored by Justice Clarence Thomas excoriated the Supreme Court for allowing lower courts to eviscerate the Court's rulings in Heller and McDonald. [Thomas' dissent starts on Page 33 of the linked PDF.]
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, 561 U. S. 742, 778 (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.
But, as I have noted before, many courts have resisted our decisions in Heller and McDonald. See Silvester v. Becerra, 583 U. S. ___, ___ (2018) (opinion dissenting from denial of certiorari) (slip op., at 11). Instead of following the guidance provided in Heller, these courts minimized that decision’s framework. See, e.g., Gould v. Morgan, 907 F. 3d 659, 667 (CA1 2018) (concluding that our decisions “did not provide much clarity as to how Second Amendment claims should be analyzed in future cases”). They then “filled” the self-created “analytical vacuum” with a “two-step inquiry” that incorporates tiers of scrutiny on a sliding scale. National Rifle Assn. of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F. 3d 185, 194 (CA5 2012); Powell v. Tompkins, 783 F. 3d 332, 347, n. 9 (CA1 2015) (compiling Circuit opinions adopting some form of the sliding-scale framework).
This approach raises numerous concerns. For one, the courts of appeals’ test appears to be entirely made up. The Second Amendment provides no hierarchy of “core” and peripheral rights.
What this means for the Second Amendment
With such a wide variety of cases to choose from, the Supreme Court's refusal to hear any of them bodes ill for any clarification until Justices Ruth Bader Ginsburg or Stephen Breyer's seats can be filled by someone who is willing to rule that the Second Amendment means what it says it means. Based upon their rulings in cases at the circuit court level, Justices Samuel Alito, Brett Kavanaugh and Neil Gorsuch have pretty good Second Amendment bona fides. Thomas has been railing for the better part of a decade about the Court's refusal to give direction on the Second Amendment.
There is only one conclusion to draw. Chief Justice John Roberts has gone squishy on the Second Amendment. It's unclear whether he is wary of joining a decision that says the right to "bear arms" means "bear arms," or if he is cowed by Sen. Sheldon Whitehouse's threats. Whatever the case, it appears as though the lower courts will have free rein to run roughshod over Second Amendment rights in the North East and West Coast of the nation.
Oral arguments in the Young v. Hawaii case are scheduled for an en banc hearing this September after a 2-1 panel of the Ninth Circuit ruled that Hawaii's carry permit system was essentially a ban on the public carry of any firearm. In 20 years, no individual has been issued a permit to carry a handgun outside of their work as a police officer or security guard. It was just a few years ago when another en banc panel in the Peruta v. San Diego County case overruled another 2-1 panel decision finding that there was no right to carry a concealed handgun. The Young case deals with the "open" carry of a handgun. The Peruta en banc thought it had cleverly dodged the "bear" issue by only addressing concealed carry, when the request it was presented with was some form of carry. Concealed carry had become the focus because the state of California had made a legislative decision to ban open carry just about everywhere in the state (in a handful of very rural areas open carry is legal in California). It will be interesting to see how an en banc panel is able to read "bear" completely out of the Second Amendment for residents of Hawaii and California.