The Supreme Court’s Steely Silence On Gun Rights Continues

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Kevin Daley Supreme Court correspondent
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The U.S. Supreme Court declined to hear challenges to two state gun control laws Monday, in keeping with its recent reluctance to decide cases involving the Second Amendment.

The lawsuits in question challenged gun control laws in Maryland and Florida. Maryland adopted a so-called assault weapons ban following the Sandy Hook elementary school massacre in 2012, while Florida has a long-standing ban on the open carry of firearms. The challenge to Maryland’s law was backed by the National Rifle Association.

Both laws were upheld by lower courts. Ten of the fourteen judges on the 4th U.S. Circuit Court of Appeals upheld Maryland’s law in February, while the Florida Supreme Court affirmed the state’s open carry ban in March.

The 4th Circuit explained that relevant Supreme Court precedents allow state governments to regulate “military-style” weapons.

“Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage,” Judge Robert King wrote for the majority, referring to a 2008 Supreme Court decision which affirmed a constitutional right to possess firearms in the home for self-defense.

King also sat on a three-judge panel of the 4th Circuit which heard the case in 2016. In a partial dissent from the court’s ruling, King used the same “weapons of war” language he would later revive in his opinion for the full 4th Circuit.

“Let’s be real: The assault weapons banned by Maryland’s FSA are exceptionally lethal weapons of war,” he wrote. “In fact, the most popular of the prohibited semiautomatic rifles, the AR-15, functions almost identically to the military’s fully automatic M16.”

For its part, a four-justice majority of the Florida Supreme Court concluded that the open-carry ban corresponds to the government’s interest in public safety without infringing on the right to bear arms.

“[We] are satisfied that the state’s prohibition on openly carrying firearms in public with specified exceptions — such as authorizing the open carrying of guns to and from and during lawful recreational activities — while still permitting those guns to be carried, albeit in a concealed manner, reasonably fits the state’s important government interests of public safety and reducing gun-related violence,” Justice Barbara Pariente wrote.

The justices have declined to take up a major Second Amendment case since deciding an important pair of cases in 2008 and 2010. The 2008 Heller decision concluded that the federal government could not enact laws restricting the right to possess guns in the home for self defense. The 2010 McDonald decision extended that ruling, forbidding state and local governments from adopting such laws.

In each case, however, the justices indicated that the Constitution permitted certain firearms regulations, though they were not specific as to the sort of laws that would pass Second Amendment muster. Since 2010 they have taken practically no action to clarify this important question.

Lower federal courts, in the mean time, have adopted a fairly narrow view of the Heller and McDonald decisions, affirming a raft of gun control measures. The 9th Circuit upheld a San Diego County policy that restricts access to concealed carry permits, while the 2nd Circuit upheld a Connecticut law adding 183 additional weapons to its existing assault weapons ban.

The high court’s silence has elicited criticism from diverse quarters. Dahlia Lithwick, a liberal court-watcher who writes for Slate and hosts the podcast “Amicus,” accused the justices of foisting a gun rights crisis on the entire nation, which they now refuse to solve.

“We know now that we have a ‘right’ and that it implicates our ‘freedom,’ but the Supreme Court has left us to guess at what the contours of that right and that freedom might be,” she wrote in October.

Justice Clarence Thomas chided his colleagues in June after the Court declined to review the 9th Circuit’s decision upholding San Diego’s policy. His short dissent was joined by Justice Neil Gorsuch.

“[T]he Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense,” he wrote. “I do not think we should stand by idly while a state denies its citizens that right, particularly when their very lives may depend on it.”

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