We’ve been waiting with bated breath as the Supreme Court kept holding over the case of Friedman v. Highland Park. Will they take cert? Are they still arguing? Are they waiting for a dissent to denial to be finished?
We now have our answer. Cert is denied: the Supreme Court will not hear the case. That leaves the ban to stand. However, Justice Thomas penned a powerful dissent, which was joined by Justice Scalia. Scroll down to the very end to read the dissent:
“[O]ur central holding in†District of Columbia v. Heller, 554 U. S. 570 (2008), was “that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.†McDonald v. Chicago, 561 U. S. 742, 780 (2010) (plurality opinion). And in McDonald, we recognized that the Sec- ond Amendment applies fully against the States as well as the Federal Government. Id., at 750; id., at 805 (THOMAS, J., concurring in part and concurring in judgment).
Despite these holdings, several Courts of Appeals— including the Court of Appeals for the Seventh Circuit in the decision below—have upheld categorical bans on firearms that millions of Americans commonly own for lawful purposes. See 784 F. 3d 406, 410–412 (2015). Because noncompliance with our Second Amendment precedents warrants this Court’s attention as much as any of our precedents, I would grant certiorari in this case.
Noncompliance is an understatement at this point. I appreciate Justice Thomas’ and Justice Scalia’s spirited defense of a meaningful Second Amendment, but this dissent doesn’t have any legal meaning. The lower courts are still free to interpret the Second Amendment into irrelevance, which they have largely done.
The Seventh Circuit alternatively asked whether the banned firearms relate “to the preservation or efficiency of a well regulated militia.†784 F. 3d, at 410 (internal quo- tation marks omitted). The court concluded that state and local ordinances never run afoul of that objective, since “states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade fire- arms.†Ibid. But that ignores Heller’s fundamental prem- ise: The right to keep and bear arms is an independent, individual right. Its scope is defined not by what the militia needs, but by what private citizens commonly possess.
Our only hope here is that there are changes in the Court, which means the Democrats cannot win in 2016 if we’re to have a robust Second Amendment. I get that not everyone likes the Republican candidates this year, and I’m not demanding people vote for whatever yahoo wins the nomination. It is simple a fact that if a Democrat wins in 2016, there will no longer be any Second Amendment right the courts are willing to protect.
Justice Thomas and Justice Scalia have at least left us a legacy, however. The author of the Heller opinion, and a concurring author of the McDonald opinion view the Second Amendment right broadly, believe that the people have a broad right to semi-automatic weapons, and reject categorical bans on common firearms.
Perhaps then in the future, a brave panel of justices will buck circuit precedent and kick a new Second Amendment case to the Supreme Court. But it’s going to take a willingness to do that, and that kind of bravery is unusual in federal judges (at least conservative judges. Leftist judges will just do whatever they want). It may be a long long time before we see another Second Amendment case before the Court again.
For now, we have to defeat Bloomberg and his ilk the old fashioned way. I’d also note that since the Supreme Court has abrogated its duty to us, will do still have the option of Congress taking action using its Section 5 powers under the 14th Amendment, and I do believe it is incumbent upon Congress to avail themselves of this power with the courts so unwilling to act.
