Why do you think the Supreme Court has been dodging gun control cases?

Politics & Elections
1

Obviously SCOTUS gets thousands of issues tossed at them every year and of those that have merit only a few get reviewed.

But it seems like they have been intentionally dodging every 2nd Amendment case that has come along over the last decade. I’m trying to speculate why.

My feeling is they may be waiting for 1 more conservative to join the court before making what could be one of the most important rulings in history. Perhaps some justices vote not to issue certiorari because they don’t trust Roberts.

Anyone else have opinions on this?

2

That is my guess: Roberts is not on board and/or is too unpredictable for either side to vote for cert.

I think Roberts just doesn’t have the guts to go where Heller and McDonald inexorably lead. If bearing arms is a personal right, then it must be allowed outside of the home as no other right is restricted to one’s home. If bearing arms is a right outside the home, then it cannot be restricted by a permitting process or possibly even a background check as we would never allow free speech, religion, or even abortion to be conditioned upon government approval.

Likewise so-called “assault weapons” could not be banned as they are in the common use, and a reconsideration of the dicta in Heller about machine guns would be in order because the only reason that machine guns are not in common use is precisely because of the government all but forbidding them. A law cannot act as its own constitutional justification.

Roberts probably realizes that all of this naturally flows from Heller, has no possible way to distinguish it, but he reads the newspapers and gets trolled by wanting to keep the Court “neutral” even though by doing so, it takes sides. Roberts needs to go.

3

This is my guess as well. And Roberts has been too unpredictable and disappointing to be trusted by conservatives. Unfortunately he may be around for a long, long time.

4

I’ll probably lose my conservative card, but I dissent from most conservatives who praise Heller as a good opinion. I liked the result, but I consider it one of Scalia’s weakest opinions. He bounces around from sort of a natural law right of self defense to an exacting textual analysis of the Second Amendment and then comes from left field (pun intended) with his bald declaration that “longstanding” prohibitions of guns in schools or government buildings or concealed carry or felon prohibitions are just fine.

Guns were not forbidden in schools in my state until 1994 and felon in possession laws were enacted federally in 1968. If those qualify as “longstanding” I don’t know what does not so qualify.

At the same time, its reasoning reads like it grants a near absolute right to carry guns, but then disclaims such a reading for the weakest of reasons, the most prominent being the “machine guns are not in common use” declaration. Scalia did not once consider the laws prohibiting machine guns as being that reason. He could just as easily have said that handguns were not in common use in D.C. as they were certainly not, having been all but banned since 1976: a prohibition more longstanding than a school carry ban.

The opinion was, IMHO, a confusing mish-mash of shit that allowed the lower courts to ignore the Second Amendment like it did. And to be clear, I’m not an absolutist. I think it is wrong for people to frighten others by open carrying AR-15s in public. There is no purpose or need for that.

But the opinion could have been drafted in a way that protects the Second Amendment, left no doubt for lower courts, allowed for reasonable regulation, yet still decided the important principle that the Second Amendment is a personal right, like all others in the BOR, and rejected the absurd principle that the government granted itself the right to form militias.

5

As usual to follow up: The restrictions in Heller were put forth without any justification. Let’s just take the felon ban (one that I might be persuaded to agree with).

What other basic rights do we take away from felons once they have served and completed their sentence? They have the right of free speech, petition, free religion. They cannot be forced to quarter soldiers, nor are their homes entitled to less privacy than mine or yours. If they are again charged with a crime, they are entitled to the Fifth and Sixth Amendment protections, along with the civil jury trial provisions of the Seventh. They cannot be subject to cruel and unusual punishments or excessive fines even while serving a sentence.

So why is the Second, exclusive of all others denied to a convicted felon? Do they forfeit the basic right of self-defense? Does their life no longer matter?

An argument could be made that such a thing is a reasonable regulation to deny a firearm to a person who has shown a prior propensity for misusing a firearm, but to a felony tax evader? And how does that mesh with other rights? If someone is convicted of making threats, we don’t restrict their future lawful speech. Why an exception here? The opinion engages in none of that necessary analysis.

And why is banning guns in government buildings okay? If the assumption here is that a person might take a gun into a government building to shoot an official, then why cannot a state make the same assumption that carrying a gun in the home might be used to shoot a domestic partner? Or a gun carried in a private office be used to shoot the boss? The opinion allows the presumption that a gun in certain places will be used for violence, yet it protects the very right itself without any analysis that a people would largely carry guns in government buildings for the same reason they would carry in the home: self-defense, which Scalia holds as fundamental. Yet it ceases in a government building or a school?

If I am at a PTA meeting, the police cannot just roughhouse me and search me without cause, nor can I be banned from the school for criticizing the administration. If I am arrested for a crime on school property, I am still entitled to due process and a jury trial. Yet my fundamental right of self-defense is still present. A person could attack me in a school just as easily as at home or on the street. So why is only my Second Amendment right restricted? The opinion makes no attempt at all to speak to that or to justify those bald assertions of dicta.

Ultimately, it is not my intention to start Gun Control Wars XXXIV in this thread. There may be very well reasoned principles why the right of self defense or the right to keep and bear arms can be restricted in these or other ways, but the reasoning of Heller doesn’t address it or really provide any meaningful limitations on it.

So back to your OP, I can see where a squicky guy like Roberts can read Heller and say, “Shit, due to this reasoning, I can’t have a constitutional justification for outlawing the carrying of machine guns in school!” And, because of the weakness of Heller, he can’t. If Scalia had written a better opinion, lower courts wouldn’t have totally ignored Heller, nor would a cert petition be thought of as a descent into madness.

6

They only accept 1% of cases that are brought to them. I agree the majority are OK with the status quo now.

7

In some states the right to vote.

8

In most states, the right to have any housing or food assistance, to even be in a home that has any form of subsidies, and many other social services are also removed.

If I had to answer the hypothetical in the OP (I don’t know that the OP has made a strong enough case for it), I guess it sounds like if the SC is dodging gun control cases, it is because they realized that the poorly thought out decision in Heller opens them up to, in order to be consistent, strike down any and all gun control measures from the fed, through the states, and municipalities.

Essentially, if they follow the pattern that the OP wishes, it would be unconstitutional for any law to affect any gun. It would also make it illegal to make punishments for crimes be enhanced if a gun is used in the commission of the crime.

I’m of mixed minds, as on the one hand, I do think that having absolutely no restrictions on guns is not going to be great for public safety, they would also, in order to be consistent, absolutely protect the first amendment in the same way. It would be unconstitutional for any restrictions on speech, no matter how inflammatory, profane or vulgar they are.

And not just speech, but religion as well. It would be unconstitutional to prohibit any exercise of religion, up to and including things like polygamy, drug use, child abuse, and even human sacrifice.

9

[quote=“UltraVires, post:5, topic:913340”]
If the assumption here is that a person might take a gun into a government building to shoot an official, then why cannot a state make the same assumption that carrying a gun in the home might be used to shoot a domestic partner? Or a gun carried in a private office be used to shoot the boss?[/quote]

The government banning guns on government property is the equivalent to a home/office owner/resident banning guns on their property.

10

It may be pointed out that none of those are explicitly in the Bill of Rights (even though said Bill says there are other rights), but the right to vote is acknowledged in the 15th, 19th, 24th and 26th Amendments, and what those amendments refer to is about what terms and conditions may not be imposed on it. (OTOH social benefit entitlements AFAIK have never been considered a “right”.)

But in any case, as k9bfriender observes, every right is still subject to regulation of “place, time and manner”. You do need a permit for a parade that closes the road, you will get fined and arrested if you blast gospel at 140dB at 3 am in a residential area, you may not practice human sacrifice, and if you engage in civil disobedience you implicitly accept that you may be arrested. A big pile of case law is all about what are the valid regulations of place, time and manner.

And, also, in many parts of the USA it has been indeed the longstanding norm that you did NOT lead your life strapped and casual carrying was not ubiquituous. (Those often being the kinds of parts where someone who grows up to be SCOTUS Justice and have law schools named after him grows up and later raises his family, natch.) Later laws in some of those locations made law what had been their usual way to live. Now, I’d be federalist about that – if Texas wants guns all around, fine. But if Maryland doesn’t, fine, too. But we can’t put customs checkpoints between Texas and Maryland so yeah, it’s a tough call.

But to go back to the OP, I agree that part of the problem is that the sitting justices are just not sure of how things will break depending on the case. Where Heller leads and what they are gonna do about it is not a no-brainer to them, on either side, so you can’t get 4 of them to agree. They know that whatever their decision, there are two wings of public opinion who will be ticked off at it, the one that wants EVERY control restriction lifted, and the one that wants EVERY gun off the street, and I get the feeling they’d rather not deal with that now.

11

In some cases the government can act as “government as proprietor” but that is nowhere near absolute. However, it still must do so for some independent reason other than it just doesn’t like the exercise of the right. See Pickering v. Board of Education. There is a difference between saying that we can ban certain speech that harms our mission but not all speech just because we can.

As I said above, I fully agree. Despite the throwaway about how Heller doesn’t call into question various laws, it’s reasoning certainly does, at least when it comes to keeping and bearing (carrying) as a general matter.

Sure, and I agree. But the better analogy would be that you need a speech permit, or an assembly permit to have a conversation with your wife in the car or while walking down the street. If bearing arms is at the core of the right (which Heller claims it is) then the appropriate analogy might be that you need a permit for an armed march with more than X number of people in a city, or that I cannot discharge a gun in the city or after a certain hour where it might disturb someone.

“Time, place, and manner” isn’t a talisman whereby every regulation of a fundamental right is automatically upheld.

12

At least for the ban on guns in federal buildings, the ban is not unrestricted by any stretch and specifically allows things like using a rifle to hunt on federally owned land.

13

I agree, and as I’ve said, Heller could have been written better so it doesn’t lead to these inexorable results.

Take a ban on guns in a federal courthouse. It is challenged in court. The judge asks for the government’s justification for that. I imagine it would be something like a courthouse is a place where tempers flare and that witnesses, judges, attorneys, and court staff need to be protected from people who would like to harm them.

But wait. Don’t tempers flare everywhere? Don’t arguments happen on sidewalks, in restaurants, in bars, in supermarkets, in parking lots, in homes, and pretty much everywhere? Couldn’t a person so inclined shoot a judge, a witness, an attorney, or other court staff once they leave the building?

So distilled to its essence, the government’s argument is that guns are dangerous and that some people will use them to commit murder, so we need to ban them here. But isn’t that just expressing a disagreement to the right to keep and bear arms in the first instance? If so, that means it is not permitted.

It’s sort of like the abortion cases where a state cannot require an abortion doctor to have hospital admitting privileges because its only purpose is to strike at the heart of the abortion right

14

The reason the SC didn’t make a decision on banning guns in federal buildings is that Heller didn’t have to do with that and whatever argument would be made AFAIK hasn’t yet been made in front of them in the first place.

Personally if someone made the mistake of letting me argue why gun bans in federal buildings should be allowed to be more broad than the general public, I would say that for one thing the government is allowed to add extra restrictions to it’s own property as part of specific government business, and for a justification (which I’m not even convinced is required for a reasonable restriction) it’s not really about shootings, it’s about the fact that carrying a gun or even the possibility that someone might could have an intimidating effect, intended or not, and in something like a courthouse, someone who could be intimidated also has rights and loses a ton of them if they are afraid to make their own case in court.

It’s also completely different from the abortion case for multiple reasons. For one thing, cases the SC has ruled on concern state restrictions on any abortion procedure, which wouldn’t be analogous to a specific law about federal buildings. For another, an abortion is a medical procedure which both for legal and health reasons basically has to be done by a professional, and in some cases is more or less necessary for the mother’s health.

15

And it may just be, that what the justices are waiting for is the case that lets them go back and properly brace up Heller, before they have to get into the weeds on drawing just where are the lines on what are the “times, places and manners” – which the Court has always agreed have to exist and which placement of lines is where the disagreement lies for most of us as you state yourself. And what I suspect is most of the cases showing up are outcome-oriented based on that supposedly “inexorable” effect. You make a point re: Roe, and I’d say for that matter the ACA, Executive authority, etc. in that the Court heeps having to deal with cases trying to move things in one direction or another “by a thousand cuts” since, in a manner of speaking, one does not simply walk into a frontal assault on a supposedly settled matter. But knowing there will always be new cases on the subject, and finding how things are now tolerable, they feel they can wait.

16

I felt at the time and still do that Heller was a lousy case.

What needs to be decided is the entire intent and scope of the 2nd Amendment.

Once that is settled, most gun related cases are also settled.

If SCOTUS were to rule that it was a collective right, e.g. the right of states to have an organized militia, then any individual right to bear arms would come from the states laws and constitutions and arguments about them would go to their courts and supreme courts.

If SCOTUS were to rule that we, the whole people, are the militia, then the individual right to keep and bear militia arms would be settled. The purpose of the militia is to supplement regulars in time of local or national emergency, or to repel tyranny be it the fed, the state, or a rogue Sheriff.
Issues such as home defense, self defense, hunting, sport shooting, and carrying in public are all natural extensions of that right.

What cannot keep going on is this mixed bag philosophy that draws no logic from either stand points. This belief of "you have the right to bear arms, just not those arms (i.e. so called “assault weapons”). This makes no sense coming from either side of the argument. If the 2nd is a collective right then I have no individual right to any arms whatsoever, and if it is an individual right then I most certainly do have a right to keep and bear militia arms (assault weapons, machine guns, etc).
The “common use” argument is just as absurd. As has been stated, if the government prohibits their possession or greatly restricts them, how could any arms be in common use? What does common use have to do with a right of possession? How many people still use Funk & Wagnalls encyclopedias? I’m pretty sure we still have a right to have them.

However, I don’t think Heller is the reason the court has been dodging cases. I believe the liberals on the court are afraid a conservative court will rule for an individual right to militia arms and carrying in public, and the conservatives are waiting for one more conservative on the court so they have a lock. Kavanaugh and Thomas seem to be drooling for a good Second Amendment case. I believe the big elephant in the room is Roberts.

17

What is the most confusing is the rationale. Scalia goes on for pages about the right of self-defense and how it predates the Second Amendment and implies, but stops short of saying that it is therefore a substantive due process right or possibly a 9th Amendment right.

But then the self-defense argument disappears until the very end. He then distills down (as best as I can tell) that, The collective right is rejected. Individuals have a right to keep and bear arms.

Then he analysis what “arms” meant under the Second Amendment. He says that we cannot divorce this individual right from the militia clause. She he painstakingly analysis and decides that what 18th Century militia arms were were the arms that were commonly owned in the home and that would be expected to be carried for militia duty. He further claims that for anyone who would say okay, we can keep and bear flintlock muskets, nope, the Second just like the Fourth is updated for modern technologies. It’s not an “evolving Constitution” argument; its just like applying the Fourth the internet or television so we have to look at arms commonly owned today and suited for militia purposes.

So, he has done fairly good so far, but probably realizing that his conclusion that will follow will be absurd, he goes off the rails. His reasoning leads to the conclusion that a handgun would not be protected. Yes, a handgun is used by officers in the military, but if 20 of us in the neighborhood showed up for militia duty, we would be carrying rifles and not handguns. The other 19 guys would probably laugh at you if you showed up for militia duty carrying a .25 ACP and tell you to go home and get a rifle. Handguns are indisputably something that is unfit for militia duty.

18

3500

Perhaps anticipating this flaw, Scalia brings back the self defense argument from nowhere and says that handguns are the most common form of home defense and must be allowed. But he has mixed two things. The “in common use” requirement (according to Scalia) came from the Second and the militia clause, not the self-defense discussion. If they are intertwined, e.g. I can keep an arm for self defense but only if it is in common use and fit for militia purposes, then handguns should be out according to his own rationale. As should stun guns, shotguns, BB guns, and kitchen knives. As mentioned above, he also, without any analysis as to why, he looks at the entire United States and not Washington D.C. to determine “in common use.” It simply makes no sense to say that two very different applications of arms are a personal right: home defense and militia service, but one can only keep arms that are suited for militia purposes and may be a very poor choice for home defense purposes. When your reasoning leads to to an absurd result, unless you make unreasonable exceptions, it is time to rethink the reasoning.

Then perhaps anticipating another issue in his argument, says that the M-16 is well suited for militia purposes, indeed the ideal weapon for militia purposes, but is not in common use, so it is not protected. Under Scalia’s reasoning, the government could pass a law saying that no weapon that is made after 2020 is eligible for private possession and soon enough nothing new would be “in common use” and therefore could be regulated. In short, he has allowed what he said was “borderline frivolous” that the government can pause technology at a certain date (1787, 2020) and then ban everything after that in a militia context. Indeed, if I brought a flintlock musket to a militia assembly it would not be protected per Scalia as they are not in common use. In short the reasoning of Scalia’s opinion says that the Second Amendment does not protect flintlock muskets even though he claimed that they were the very arms that he said the Founding Fathers had in mind!

And as mentioned above, in his M16 argument, he fails to appreciate how the 1934 NFA made automatic weapons not “in common use” by government decree. It simply cannot be good constitutional law that as long as the government gets away with a deprivation of rights long enough then that acts as a good justification for it.

In short, the whole thing is a mess, so if you are a guy like Roberts, how do you write an opinion that prevents what most reasonable people think is a terribly undesirable result (machineguns in schools) yet still protect the basic individual right?

19

And this brings up one of the centerpieces of those who would push draconian gun laws. Their agenda, if you are to believe them, is to combat crime.

But a government that has to violate the rights of noncriminals in order to fight the criminal element has failed and should be either be abolished or at least those running such government should be replaced. It’s that simple.

I don’t like the self-defense argument that scalia brings up because even though it is a natural extension of the 2nd Amendment it is not it’s base purpose. Hence my distaste for the entire Heller case.

20

I agree, but for a different reason. The right of self defense is pretty basic. If the government passed the law that said if you were attacked and simply either had to die or go to jail, that would be pretty tyrannical and ahistorical. Whether you want to call it a privilege or immunity, a 9th Amendment right, or substantive due process, you have a right to use force to repel someone who is trying to kill you.

But that statement does nothing to inform what types of implements you can possess and then use for self defense. Excellent arguments could be made that such a thing means you can possess and use a wide variety of implements for that purpose or you can only possess very basic implements for that purpose.

A good next step would be to look at the Second Amendment, but when Scalia concludes that the “arms” discussed in the Second Amendment are those related to militia service, then by definition the implements of personal self defense are not considered. When I am fighting an attacker who is holding me at knife point in my house, that has nothing to do with a militia. And when I am in a militia, say that there is an insurrection, that has nothing to do with individual self defense in a home or at Walmart. The arms for individual self defense analysis could not having anything less to do with the arms in a militia analysis.

And I think that is where Scalia goes wrong is equating “arms” independent clause of the Second Amendment with the militia service in the dependent clause. It is if Scalia read it to say, “A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear suitable militia arms shall not be infringed.” That’s bad enough without also trying pigeonhole a self defense argument in the text of that amendment–arguably as a detractor might say, to allow people to own other arms. It is a mish mash of two things.

The better way is to simply say that the “arms” mentioned in the Second are not contingent in any way on militia use.