Why Did the Roberts Court Punt on Ten Second Amendment Cases? – National Review

Chief Justice of the United States John Roberts departs the Trump impeachment trial in Washington,January 29, 2020.(Brendan McDermid/Reuters)The most likely explanation is that neither of the Courts ideological factions was confident enough of Robertss support to risk granting certiorari.

On Monday, the Supreme Court declined to review all ten of the Second Amendment cases it had pending on its docket. Though the cases presented different fact patterns and procedural postures, the Court simply refused to weigh in on any of them. There seems to be one likely reason: Chief Justice Roberts does not want the Court to take a stance on the Second Amendment. We know because it only takes four justices to agree to hear a case but five to reach a decision once a case is heard and there are four justices on record as being in favor of the Courts reviewing Second Amendment issues.

Justice Thomas has been dissenting from the Courts refusal to review those issues for years, and he did so again on Monday, writing to protest the Courts decision to pass on Rogers v. Grewal, a case addressing New Jerseys unconstitutional handgun-carry-permit laws:

This case gives us the opportunity to provide guidance on the proper approach for evaluating Second Amendment claims; acknowledge that the Second Amendment protects the right to carry in public; and resolve a square Circuit split on the constitutionality of justifiable need restrictions on that right. I would grant the petition for a writ of certiorari.

Justice Alito authored the landmark 2010McDonald v. Chicagoopinion, which incorporated Second Amendment rights to cover the states, and recently filed a scathing dissent to the Courts decision inNew York State Rifle & Pistol Association v. City of New York:

Twelve years ago inDistrict of Columbia v. Heller. . . we held that the Second Amendment protects the right of ordinary Americans to keep and bear arms. Two years later, our decision in McDonald v. Chicago . . . established that this right is fully applicable to the States. Since then, the lower courts have decided numerous cases involving Second Amendment challenges to a variety of federal, state, and local laws. Most have failed. We have been asked to review many of these decisions, but until this case, we denied all such requests.

Alitos dissent goes on to review the underlying merits of the case and argue that the New York City gun-control law at issue is certainly unconstitutional.

Justice Kavanaugh is also in favor of the Courts weighing in on Second Amendment issues. He wrote a well-knowndissent in Heller II, a follow-up case stemming from the Heller decision Alito references, in which he chastised the D.C. Circuits reasoning and directly applied the Supreme Court test that was established inHeller. More recently, he joined Thomass dissent against the Courts refusal to hearRogers, and wrote, in a concurrence to theNew York State Rifledecision:

I share Justice Alitos concern that some federal and state courts may not be properly applyingHeller andMcDonald. 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.

Finally, Justice Gorsuch, while being quieter on the subject, has voiced his support for a review of Second Amendment issues as well: He has joined a couple of dissents penned by Justices Thomas and Alito, inPeruta v. CaliforniaandNew York State Rifle, respectively.

If youre counting along at home, thats four Justices Thomas, Alito, Gorsuch, and Kavanaugh in favor of the Courts reviewing Second Amendment issues. Those four together can grantcertiorariin any case they wish. One presumes that the only reason they didnt do so in one of the ten Second Amendment cases the Court passed on Monday is that they were unsure how Chief Justice Roberts would vote once the cases were heard.

To be clear, the Court wasnt in want of choice. The ten cases pending before it covered issues ranging from New Jerseys handgun-carry regulations (Rogers) to Californias presumptively unsafe handgun law (Pena v. Horan) and Massachusetts assault weapon and high-capacity magazine bans (Worman v. Healey).

Some of the ten also showed a clear circuit split a conflict between two or more courts of appeals in the nation as to how to decide a similar or identical issue which tends to make the Court far more likely to hear a case. In this instance, there was and is a clear split between circuits on the applicability of the Second Amendment outside the home.

So, ruling out votes and issues, the remaining roadblock would seem to be Chief Justice Roberts. What is unclear is why.

Some have speculated that Roberts wants to avoid risking the Courts reputation on a controversial case during a tense political cycle. But, if the Court had grantedcertiorariin one of these cases today, the case would have been briefed over the summer, argued in late 2020 or early 2021, and decided in early or mid 2021, well after the next president had been elected.

Does Roberts actually align with the four progressive-leaning justices on the Court when it comes to the Second Amendment? Not likely. Remember, the four progressive-leaning justices can grant review of a case just as the four conservative-leaning justices can. Given that they didnt on Monday, they likely dont believe Chief Justice Roberts is on their side of the issue.

The conclusion were left with is that Chief Justice Roberts doesnt want the Court to weigh in on the Second Amendment right now, and neither the four conservative justices nor the four progressive justices were confident enough of his siding with them on the issue to risk granting certiorari in any of the ten cases.

Keep in mind, when the chief justice is in the majority on a decision, he gets to pick who writes the opinion.If Chief Justice Roberts is the swing vote in a case, hell be in the majority however he decides, and could easily assign himself the opinion. Given that the rest of the Court is evenly split, no matter how he drafted it, the justices who agreed with the outcome of the opinion would almost have to sign on, regardless of its reasoning, and that could spell trouble.

For now, we will have to rely on the decisions of the circuit courts in gun-rights cases. But while its unclear what the impact of this week will be on the future of Second Amendment jurisprudence, those of us committed to defending Second Amendment-protected rights will not give up the fight.

Read the rest here:
Why Did the Roberts Court Punt on Ten Second Amendment Cases? - National Review