With today’s decision to deny all pending petitions raising Second Amendment issues—Cato had filed in three—the Supreme Court has abdicated its responsibility to say what the law is in this important and contentious area.
For the last decade, lower courts have engaged in judicial disobedience, aiding and abetting many states’ hostility to the right to armed self‐defense. They’ve also been all over the place in setting out how to evaluate such challenges. With today’s cowardly decision not to hold those judges’ and public officials’ feet to the constitutional fire, the justices are okaying that massive resistance and refusing to settle any of the legal confusion.
This is especially disappointing because in New York State Rifle & Pistol Association v. NYC a few months ago, four justices (Thomas, Alito, Gorsuch, Kavanaugh) signaled their willingness to finally start defining the scope of these rights. But apparently those four were so unsure of whether they had a fifth vote and ultimately decided not to roll the dice.
In other words, for nearly a decade after McDonald v. City of Chicago (2010) extended the individual right to keep and bear arms to the states, the uncertainty over Justice Kennedy’s vote prevented the Court from taking up a Second Amendment case—and now that pattern has been extended to Chief Justice Roberts’s tenure in the “swing” seat.