illing the Supreme Court vacancy is of upmost importance to conservatives, but it will not lead us to the promised land of a constitutional paradise. At present, there is only one full-fledged originalist
on the court, and in general, until the other GOP appointees get more aggressive in reversing new, malignant precedents in the lower courts, we will continue to suffer from judicial tyranny. However, the most auspicious prospect for a return to constitutional jurisprudence at the court will likely be in cases involving gun rights. Nothing to sneeze at, indeed, especially with the growing violence menacing our safety daily.
Years after discovering many novel pseudo-rights, the Supreme Court finally recognized the Second Amendment’s individual right to self-defense in 2008 in the landmark D.C. v. Heller decision. Two years later, in McDonald v. Chicago, the court ruled that these constitutional constraints on gun control applied to the states as well. Chief Justice Roberts joined both of those decisions, yet over the past decade, he has allowed lower courts to chip away at them to the point that they now only affirm some right to own some sort of gun in one’s home. Everything else — from bans on common weapons and extremely common, almost standard magazines to categorical bans on the right to bear arms outside of one’s home — has been upheld by nearly every appeals court.
What has happened over the past few years is a losing battle of gun rights groups trying to enforce Heller and the Supreme Court turning away their appeals. Chief Justice Roberts clearly has no desire to affirm an individual right to carry, even though it is the logical outcome of Heller, so he has chosen not to take up the appeals. What is so egregious about this practice is that lower courts are literally repealing a Supreme Court opinion.
For example, in Kolbe v. Hogan, 10 of the 14 judges on the radical Fourth Circuit ruled that 45 commonly owned semi-automatic rifles are military weapons and are therefore not protected by the Constitution. The court used Breyer’s dissent to create a state interest-balancing test to limit the Second Amendment, a test explicitly rejected by the Heller majority opinion. For the Supreme Court to deny these appeals was unprecedented. It would be like lower court judges citing Rehnquist’s Roe v. Wade dissent in an abortion case.
While Justice Kennedy was still on the court, it was clear that gun rights advocates didn’t even have the requisite four votes required to grant certiorari and take up the appeals pending before the high court. Thomas and Scalia bitterly dissented from the denial of cert in several cases in 2015. Alito also joined Thomas in voicing his concern about the unwillingness of the high court to enforce its own precedent. In a concurrence in Jaime Caetano v. Massachusetts, Justice Alito accused his liberal colleagues of leaving people’s safety “to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.”
Several months earlier, when Scalia was still alive, Thomas wrote a dissent in the denial of cert of the appeal from the Ninth Circuit in a case involving San Francisco’s law requiring that all guns be locked up even at home. “Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense,” wrote Thomas, joined by Scalia in the dissent, “lower courts, including the ones here, have failed to protect it.” He noted how justices are always eager to enforce precedent on favored rights, including abortion, but not when it comes to real, foundational rights. “I see no reason that challenges based on Second Amendment rights should be treated differently,” wrote an irate Thomas.
Later in 2015, Thomas wrote another dissent joined by Justice Scalia, when the Supreme Court allowed a Seventh Circuit ruling upholding Chicago’s assault weapons and magazine capacity bans to stand. Thomas noted how the ruling “ignores Heller’s fundamental premise” that the Second Amendment “is an independent, individual right” and lambasted his colleagues on the high court for their “refusal to review a decision that flouts two of our Second Amendment precedents.” He famously charged them with treating “the right recognized in Heller as a second-class right.”