Opinion: SCOTUS Once Again Ignores the Second Amendment by Opting for Inaction on 13 Cases



Officially, the Supreme Court took action today on 13 cases regarding the Second Amendment. Unofficially, however, they opted for inaction by punting seven of those cases and denying certiorari on the other six. In a wrap-up meeting Tuesday morning, where the Court conducted a final review of the remaining cases that were pending, the Court decided to ignore their constitutional duties once again. The cases considered included six individual cases regarding prohibited persons statutes, six individual cases having to do with firearm and magazine bans in Illinois, and Antonyuk v. James, which challenges New York State’s “good moral character” requirements for obtaining a concealed carry permit. 

The Court released decisions from the wrap-up conference this morning, and sent several of these cases back down to the appellate courts for review in light of the Court’s decision in U.S. v. Rahimi. Among the cases that were granted cert, vacated, and remanded:

  • Garland v. Range – Whether 18 U.S.C. 922(g)(1), the federal statute that prohibits a person from possessing a firearm if he has been convicted of “a crime punishable by imprisonment for a term exceeding one year,” complies with the Second Amendment
  • U.S. v. Daniels – Whether 18 U.S.C. 922(g)(3), which prohibits the possession of firearms by a person who “is an unlawful user of or addicted to any controlled substance,” violates the Second Amendment.
  • Antonyuk v. James – Whether the proper historical time period for ascertaining the Second Amendment’s original meaning is 1791, rather than 1868; and 2. Whether “the people” must convince government officials of their “good moral character” before exercising their Second Amendment right to bear arms in public.

The Court then decided to deny certiorari in all six cases dealing with Illinois’s firearm and magazine bans, with Justice Samuel Alito once again being the lone dissenter as to his desire to grant a writ of certiorari for the six cases. Justice Clarence Thomas, while sympathetic to hearing the cases, wrote that the court should not take up these cases when they are in legal flux, or an “interlocutory posture.”

[The] Court is rightly wary of taking cases in an interlocutory posture,” but adding, “I hope we will consider the important issues presented by these petitions after the cases reach final judgment.”

Admittedly, I am no scholar on legal procedures, especially on the Supreme Court level. But the trend that I and others have seen is that the Supreme Court routinely denies cert for major Second Amendment cases like magazine and so-called “assault weapons” bans; rather they remand them to be re-heard at the district court level. There were “assault weapons and magazine bans passed by the state of California decades ago, with subsequent lawsuits against those laws head and ruled on by the Ninth Circuit and appealed to the Supreme Court, yet the Court refused to hear them, remanding them each time after the rulings of Heller, Bruen, and now Rahimi. And each time, the Ninth Circuit refused to apply the standards of Heller and Bruen, incorrectly ruling those laws constitutional. There has been — and continues to be — major disagreement in the Circuit Courts regarding the Second Amendment, such that intervention by the Supreme Court is vital. 

The orders that came out today regarding all 12 of these cases are not necessarily bad, in that the Court, through Justice Thomas, has indicated a desire to hear these cases eventually. I fail to see the silver lining in that possible future. The amount of time that it will take for these laws to be re-heard by their respective district courts will be several years of waiting and worse. Californians, for example, are still waiting for the Ninth Circuit to re-hear the magazine and “assault weapons” bans remanded by SCOTUS after Bruen

It has been over two years since that decision was handed down, yet the Ninth Circuit is dragging its feet. All the while, California and other anti-gun states pass their “Bruen response bills” that completely violate that ruling, yet they pass them anyway. States like California pass anti-gun laws at a pace that almost guarantees that any lawsuit against those bills will take years and years to reach their disposition. California’s “large capacity magazine” ban was first signed into law almost 24 years ago, yet the several lawsuits that challenged it are still pending in the Ninth Circuit. How long must Americans suffer from the tyranny of radical anti-gun governors and states before we get some relief from the Supreme Court? At the very least, the Court needs to actually hear the cases — give us that. 

Until then, we must sit and wait for the courts to do their jobs, while enjoying the bits and pieces of the Second Amendment rights we have left. 





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