Do the Justices Look More Favorably on Gun Regulation than Many Fear?

By Cody Jacobs, Visiting Assistant Professor, Chicago-Kent College of Law.

Last Monday, the Supreme Court denied certiorari in Kolbe v. Hogan, a Second Amendment challenge to Maryland’s ban on assault weapons and large capacity ammunition magazines. As a result, the Fourth Circuit’s decision upholding the ban was left in place. The Court’s denial is notable because it continues a pattern: after holding that the Second Amendment protects an individual right to keep and bear arms in a pair of cases in 2008 (District of Columbia v. Heller) and 2010 (McDonald v. City of Chicago), the Court has not granted cert in any major Second Amendment case since then despite having numerous opportunities to do so. Unraveling the mystery of why that is may have major implications for the future of Second Amendment litigation.

Kolbe seemed like a particularly plausible vehicle for a cert grant. Although there is no circuit split on the issue—the four federal courts of appeal that have heard Second Amendment challenges to assault weapons bans have upheld them—the Fourth Circuit’s decision upholding Maryland’s law in Kolbe was a little different than the previous decisions. The Fourth Circuit didn’t just uphold Maryland’s law, it held that assault weapons and large capacity ammunition magazines are not protected by the Second Amendment at all. In contrast, the other courts that upheld these bans concluded that such weapons were protected by the Second Amendment, but that the bans could nevertheless survive because of the strong public safety justifications behind them. Thus, Kolbe represented a relatively minimalist reading of Second Amendment rights that would presumably have been more likely to attract the Supreme Court’s attention.

On the other hand, the denial in Kolbe is not that surprising in light of the Court’s history of denying cert in these cases. According to a report from the Giffords Law Center to Prevent Gun Violence, the Court has denied cert in over 70 Second Amendment cases since 2008. This number includes several denials in cases involving perhaps the most litigated Second Amendment issue, the right to carry guns outside the home. Several states have requirements that applicants for concealed carry permits demonstrate a “good reason” that they need such a permit before one may be granted. Gun rights advocates have challenged these laws almost everywhere they exist and, with the exception of a successful challenge in the District of Columbia (discussed below), all of these challenges have been rejected by the courts of appeals and the Supreme Court has refused to grant cert.

This trend—which has resulted in most Second Amendment challenges to gun laws failing—has not gone unnoticed by the Court’s more conservative Justices. For the first five years after McDonald, these denials came without noted dissent. That changed when the Court denied cert in a 2015 case challenging a San Francisco ordinance requiring guns to be locked up when not in use. Justice Thomas, joined by Justice Scalia, dissented from the Court’s refusal to grant cert. That same year, Justice Thomas, again joined by Justice Scalia, dissented from the Court’s refusal to grant cert in a case challenging a city’s assault weapons ban. And just this summer, Justice Thomas, this time joined by Justice Gorsuch, dissented from the Court’s denial of cert in a case upholding California’s “good reason” requirement for concealed carry permits. In that dissent, Justice Thomas complained that the Court’s “decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right” and decried the “inexcusable” discrepancy between cases involving other rights, which the Court hears routinely, and cases involving the Second Amendment, which have not been heard in the Court since McDonald.

“Inexcusable” or not, this trend certainly is not what either side expected to happen in the immediate aftermath of Heller and McDonald seven years ago. So, what does it mean? (Of course, any attempt to read tea leaves from cert denials necessarily comes with all the usual caveats—the Court has repeatedly reminded us that a cert decision is not a decision on the merits.)

Let’s start with what we know. We know that at least two Justices voted to grant cert in some of these cases. It also seems relatively safe to assume that none of the four “liberal” Justices voted to grant cert, likely because they were happy with the results in the lower courts. The question, then, is why didn’t Justice Alito, Justice Kennedy, or Chief Justice Roberts vote to grant cert in any of these cases? All three of them voted with the majority in Heller and McDonald, and Justice Alito actually wrote the controlling opinion in the latter. It is possible that one of them could have voted to grant cert in these cases and for whatever reason choose not to dissent, but, none of them appear to agree with Justice Thomas that the repeated denials are particularly problematic.

The politics around the gun debate has changed significantly since 2010. Even though there has been no policy change at the national level, the political will for greater restrictions on guns surged in response to the Sandy Hook shooting in 2012 and has led to a wave of new gun laws, particularly in blue states. In fact, the law at issue in Kolbe itself was passed in direct response to Sandy Hook. It isn’t a stretch to imagine that the rapid killing of 20 six and seven-year-old children that had such a powerful impact outside the Court might have had an impact inside it as well.

If some of the Justices that formed the majority that recognized an individual Second Amendment right are now having second thoughts, or at least feeling amenable to a narrow reading of that right, that would have major implications for litigation strategy in Second Amendment cases. The few times that gun laws have been struck down by federal courts on Second Amendment grounds, state and local governments have declined to appeal those rulings, likely fearing that they would lose in the Supreme Court and roll back similar gun laws nationally. This happened just recently when the District of Columbia’s “good reason” concealed carry requirement was struck down by the DC Circuit. DC officials decided not to seek cert even though the decision created a circuit split because they were concerned that an unfavorable ruling from the Supreme Court would put similar laws around the country in jeopardy.

However, this caution may not be warranted and may even be counterproductive. The Court’s refusal to grant cert in case after case upholding a wide range of gun laws may show that a majority of the Court at least has serious doubts that these laws violate the Second Amendment. But that majority may not last with President Trump explicitly promising to fill any vacancies that arise during his term with pro-gun justices. The next time a gun law is struck down on Second Amendment grounds, perhaps the state or local government defending that law should seek cert and force those Justices who may be wavering behind the scenes to lay their cards on the table.

Prior to coming to Chicago-Kent, Professor Jacobs was a Staff Attorney at the Law Center to Prevent Gun Violence. His scholarship focuses on the Second Amendment and gun policy.

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