POLITICS

Don't Bank On The Supreme Court To Clarify The Second Amendment Anytime Soon

The Orlando shooting may be on their minds, but the justices probably won't take up a new gun rights case for a while.
It's unlikely the Supreme Court will hear a case to clarify the scope of the Second Amendment soon, given the current po
It's unlikely the Supreme Court will hear a case to clarify the scope of the Second Amendment soon, given the current political climate and the fact that it's missing a justice.

If you think the Supreme Court is poised to expand or restrict gun rights sometime soon, don't hold your breath.

As handwringing continues over what might have prevented the Orlando massacre -- an old-time filibuster sparked by it even broke out in the Senate on Wednesday -- the justices are about to consider a state gun control law enacted in the aftermath of the Sandy Hook school massacre in Newtown, Connecticut.

According to its docket, the court on Thursday will weigh whether to take up Shew v. Malloy, a case with all the elements that could make it emblematic for the battle over the Second Amendment's meaning.

It's a dispute between a host of gun rights groups, businesses and individual gun owners against Connecticut over the constitutionality of a sweeping regulatory regime that bans so-called "assault weapons" -- semiautomatic firearms and large-capacity magazines of the very sort used in Newtown and Orlando.

Back in October, an appeals court in Manhattan said the Connecticut law and a similarly restrictive law in New York were constitutional -- and the plaintiffs vowed to take the battle to the Supreme Court.

Tom King, the head of New York's biggest gun rights group, even said he was "happy" to have lost the case because that meant his organization could now ask the highest court of the land to decide the issue once and for all.

The sudden death of Justice Antonin Scalia is a significant reason why gun rights advocates are unlikely to get lucky at the
The sudden death of Justice Antonin Scalia is a significant reason why gun rights advocates are unlikely to get lucky at the Supreme Court.

But then Justice Antonin Scalia died. And suddenly, the gun lobby's calculations changed -- including King's, who told the New York Daily News weeks after Scalia's death that it was "just the wrong time" to continue the fight in the absence of a reliable conservative vote at the Supreme Court.

That might explain why Senate Majority Leader Mitch McConnell (R-Ky.) glowingly pointed to the National Rifle Association's opposition to Merrick Garland, the president's high court nominee, to rationalize his own refusal to hold a vote and a hearing for Garland. 

None of this matters, and yet it matters a great deal.

Because despite the pleas from gun rights advocates who still want the Supreme Court to take up the challenge to the weapons ban, the justices could wield all kinds of reasons not to touch the case with a 10-foot pole.

It's not that they aren't interested in clarifying the scope of the Second Amendment in the wake of Scalia's magnum opus in District of Columbia v. Heller, which for the first time recognized a fundamental right to gun ownership in the home. But to echo King, it's just not the right time -- not with a short-staffed Supreme Court, a volatile political environment, and a nomination fight that may very well continue after President Barack Obama's successor takes office.

As things stand now, all signs point to an extremely quiet and uncontroversial Supreme Court term beginning next October -- a dry season that will stand in stark contrast to the current term's constitutional blockbusters on affirmative action, abortion and immigration, to name only a few. The court just isn't taking many new cases.

This paucity of potential big decisions aside, the court has sent some signals that the Second Amendment is safe, even as it has rejected dozens of cases challenging gun control measures across the country, leaving lower courts as the final decision-makers.

Over the protest of Scalia and Justice Clarence Thomas, the Supreme Court refused in December to review an appeals court decision that effectively upheld an assault weapons ban in a small Illinois town. Thomas said that decision treated “the Second Amendment as a second-class right.”

The Second Amendment extends ... to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding, Supreme Court of the United States in the case Caetano v. Massachusetts

But in March, a month after Scalia's death, the justices tipped their hand the other way, ruling that a Massachusetts ban on stun guns may violate the right to bear arms, quietly but forcefully endorsing the late justice's Heller decision.

“The Second Amendment extends ... to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding," the court said in a very brief ruling that no justice signed his or her name to.

But writing separately, Thomas and Justice Samuel Alito said they would have gone further, asserting that indeed, gun ownership for self-defense is a "fundamental right" while making clear that Americans' safety shouldn't be "left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe."

Fighting words, as well as fodder for debate about where the court may go next on guns.

It is precisely this seeming tension within the Supreme Court -- plus the political fallout from Scalia's vacancy and all the work that other courts are doing to make some sense of the Second Amendment -- that indicates why the justices probably won't pull the trigger on the next big gun rights case soon.

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