By Sam Hoober, Alien Gear Holsters
Most of us here have passed some sort of civics class at some point, whether at the primary, secondary or tertiary level. Some of us have had all of them. (Not the best lectures to sit through with a hangover. That’s what I heard, anyway.) Concordantly, we’re all likewise aware that the body of government responsible for declaring the limitations, exceptions and finer points of what our rights are under the Constitution is, of course, the Supreme Court.
Recently, SCOTUS declined to grant certiorari to ten different gun rights cases, some of which concerned some weighty issues.
Heretofore, the Supreme Court has barely touched the issue of Second Amendment rights. Remember that there’s what you think they are or should be, and then there’s what the Supreme Court says they are, and it’s the latter that has the force of law.
However, before this goes any further, it needs to be stated that this isn’t a plea, paean, clarion call, broadside or otherwise saying that SCOTUS needs to rule on a particular Second Amendment issue or that they need to rule a specific way on a particular Second Amendment issue. In fact, we might be better off that they haven’t, and more on that later.
Instead, this is to say that the Supreme Court’s reticence to do pretty much anything at all is, in fact, the reason why our gun laws and policies are such a mess, or at least a major contributing factor.
The last significant cases the court heard were District of Columbia v. Heller and McDonald v. City of Chicago, heard in 2008 and 2010, respectively. To give you an idea of how little SCOTUS has settled when it comes to anything gun-related, Heller was about whether or not individuals could keep arms in the home for their own personal protection, irrespective of militia use, and McDonald concerned whether or not a person’s Second Amendment rights were protected under the Fourteenth Amendment’s Due Process Clause.
Put in simpler language, Heller settled whether the Second Amendment meant you could have a gun at home at all, and McDonald settled whether or not the right to bear arms was really as much of a right as anything else in the Bill of Rights.
That’s how little they’ve touched on the issue. The nation’s highest court hadn’t even ruled that the Constitution, which says we have a right to carry and bear arms, means you can even have a gun at home, in your own private residence, for your own protection. Nor had they ruled that the right to bear arms was, like, a real right, like the freedom to say what you want and stuff.
By 2010.
Let’s consider some of the more pressing gun rights issues.
A number of states, such as Maryland, Massachusetts, New York and New Jersey, have banned “assault weapons.” Others, such as California and my home state of Washington, have placed restrictions on their purchase to varying degrees.
You’d think the issue had been settled some time ago. In fact, you’d think the issue was actually settled by one of the few Second Amendment SCOTUS cases, namely US v. Miller of 1939.
In Miller, the court ruled that the federal government or the states could only restrict purchase of a weapon if said weapon had no legitimate military purpose since, according to the Hughes court, the reason for the amendment in the first place was so a person could have arms in case they needed to muster up for the militia.
The case in question concerned a sawed-off shotgun, which doesn’t have many military applications and therefore wouldn’t be part of “ordinary military equipment,” the phrase used in Miller.
On the other hand, an AR-platform rifle is the gun that’s issued to – basically EVERYBODY – and could not be thought of as anything but “ordinary military equipment.” And that decision, again, was in 1939.
The court has refused to grant cert to a number of cases challenging “assault weapon bans,” including in the recent rounds of denials of cert. The oddity, of course, is that the Miller decision would seem to preclude such laws from existing, except it’s worth noting that Miller concerned federal legislation rather than state or local legislation such as in the case of the “assault weapons” ban in Cook County, Ill.
Another issue that would seem to be ripe for the court’s consideration is may-issue permit criteria and denials. For those unaware, the may-issue states (such as New York, New Jersey, California, Massachusetts) often require a reason for a person to be issued a permit, which can be used to approve or deny issuing a permit to an applicant for a concealed carry permit.
For quite some time, getting a permit in such states usually was only possible if one is (usually) white, male, wealthy and/or politically connected or famous. Additionally, a hallmark of may-issue legislation is that the permit can be denied at the issuing authority’s discretion, even if the applicant met all criteria for issuance within the letter and spirit of the law.
Denial criteria have been challenged in court several times, on the grounds that either the criteria are too arbitrary, too thin, or otherwise that denial at the issuing authority’s discretion rather than for a more concrete cause is in fact an infringement of Second Amendment rights.
This isn’t a new issue, at all. The problem is at the heart of some recent court cases such as 2016’s Peruta v. San Diego County and two court cases in 2019 concerning Hawaii’s Draconian permit issuance policies in Young v. Hawaii and Livingston v. Ballard, both of which are pending hearings in the Ninth Circuit Court of Appeals. Appellate decisions from various circuits have broadly held that merely having criteria for issuance of a permit isn’t necessarily constitutionally prohibited – with the reason being, as cited in Peruta, that the right to carry and bear isn’t infringed since a person technically could do so if granted the permit – but what hasn’t been addressed is the alleged capricious denials.
State-level court decisions in Rhode Island and Connecticut have resulted in those states, which are technically may-issue at law, becoming more akin to shall-issue in practice (though with discretion for the issuing authority) as cause has to be shown in case of a permit being denied.
Open carry bans are another issue, as Florida’s open carry ban (and that of other states) has been challenged at various points.
However, prior SCOTUS precedent doesn’t bode well here.
A relevant decision was rendered in 1897, Robertson v. Baldwin, wherein the court held the ability to carry and bear arms wasn’t infringed if one manner was prohibited but others were not. Baldwin was not a Second Amendment case per se (it dealt with merchant seamen who had been forcibly returned to their vessel per maritime law) but the decision states that just because concealed carry is prohibited, open carry is not and thus the right to carry and bear arms is not infringed, which was acknowledged in DC v. Heller.
One could continue, at length if so desired, but what’s patently obvious is that the Supreme Court has been loath to delve into Second Amendment issues, at all, and that reticence has helped to create the hodge-podge of gun laws that currently exist in the United States. What is perfectly legal inside of one set of state borders – such as non-resident otherwise lawfully carrying with a permit in, say, Pennsylvania, or even just owning an AR-15 – becomes a felony inside another set of state borders.
However, there’s a reason for it. The Supreme Court is cautious about setting new precedent in any area, let alone Second Amendment issues, with the idea being that the court should only step in when seriously needed or something like that.
Furthermore, it is also the case that our system of government was designed so the states have a certain amount of sovereignty; while the federal government had preemption in certain matters, the states could also govern themselves up to a point.
What’s the point beyond which state regulation is not supposed to go? We all have our own ideas about what that point is – some people think there should be no restrictions, some think there should be a lot of restrictions, some folks fall somewhere in between – but SCOTUS hasn’t really defined what many of those limitations are.
While it’s high time the court got itself involved, there’s no guaranteeing the court would decide any issue in favor of gun rights rather than gun control, which is as unsettling as their inaction to date.
The 17th century scholar Robert Burton wrote that “he who goes to the law takes a wolf by the ears,” and that’s exactly what could happen if the Supreme Court decided to weigh in more regularly on Second Amendment issues. Obviously, some intervention is needed for the sake of more consistency and a little less madness when it comes to our gun laws, but we might be the poorer for it in terms of our freedoms.
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Sam Hoober is a Contributing Editor to AlienGearHolsters.com, a subsidiary of Hayden, ID, based Tedder Industries, where he writes about gun accessories, gun safety, open and concealed carry tips. Click here to visit aliengearholsters.com.