The Supreme Court and its big Second Amendment problem

The Supreme Court and its big Second Amendment problem
© Greg Nash

Dissenting from the Supreme Court’s recent decision not to review California’s 10-day waiting period to purchase firearms in Silvester v. Becerra, Justice Clarence Thomas argued that the Second Amendment has become “a disfavored right.” Indeed, in the 10 years since Heller v. District of Columbia, which held the Second Amendment protects a limited individual right to bear arms, the court has not reviewed a single lower court ruling on the scope of this right, even though in the same period it has entertained multiple cases concerning the First Amendment’s protections of expression and religion and the Fourth Amendment’s protection of privacy.

In Thomas’s view, the court’s disinterest has emboldened lower courts to treat the protections of the Second Amendment as second class. He is surely correct. The interesting question is why the Supreme Court has been unable to muster the four votes needed to review one of the many lower court rulings. There are two possible explanations. The first is that, as Thomas suggested, some of the justices regard the protections of the Second Amendment as less important to our constitutional democracy than other individual rights protections. The second is that neither of the justices most likely to agree to review one of the lower court decisions — Chief Justice John Roberts or Justice Anthony Kennedy, both in the Heller majority — currently has an interest in further developing the court’s Second Amendment jurisprudence.

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As to the first explanation, it is not unreasonable to speculate that some members of the court, and perhaps a majority, do not see the right to bear arms as of the same weight as other individual rights protections. Notwithstanding Justice Antonin Scalia’s effort to capture the original meaning of the text in Heller, the Second Amendment is, like the Third Amendment’s protection against having quartering soldiers in private homes, essentially an anachronism.

Even assuming the Framers believed it important to constitutionalize a limited right to self-defense, as Scalia essentially concluded, more than 200 years later, the utility of such a right has been supplanted by the development of modern and effective public police forces responsible for keeping the peace, as well as a professional military with a long and deep history of subordination to civilian leadership.

Further, the Supreme Court has never treated all of the provisions of the Bill of Rights the same. In interpreting the reach of the protections of expression and religion, for example, the court’s First Amendment jurisprudence has ebbed and flowed. The past three decades have seen a steady erosion of the privacy protected by the Fourth Amendment, as a majority of the court has bowed to the practical realities of crime control and continued to diminish the scope of the most important remedy for privacy violations by government agents, the exclusionary rule, which demands that evidence unconstitutionally seized be suppressed.

As to the second explanation for the reluctance to review Second Amendment decisions, it is important to remember that the justices generally do not act in a vacuum. Notably, neither Chief Justice Roberts nor Justice Kennedy is unfailingly committed to an originalist interpretation of the Constitution, without regard to its real-world consequences. Kennedy interprets the Constitution with an eye toward the practical effects of the court’s rulings, as when he wrote for the majority just two terms ago upholding state-sponsored affirmative action in higher education. Roberts has an eye on how constitutional decisions may affect the court’s legitimacy, as he expressed most recently in oral arguments in Gill v. Whitford, the political gerrymandering case.

In light of their pragmatic approaches, one can see why Roberts and Kennedy each might be hesitant for the Supreme Court to further address the right to bear arms. In Silvester, Thomas criticized the lower court’s conclusion that California’s 10-day waiting period was reasonable. Today, as the nation continues to reflect on the recent mass shooting in Florida, most Americans probably would agree with that conclusion.

In other words, this is simply not the right time for the Supreme Court to step into debates about the Second Amendment’s scope. For while Justice Thomas views that waiting period as a potential constitutional problem, Chief Justice Roberts and Justice Kennedy likely appreciate that a majority of Americans, and many of their elected representatives, support its potential to prevent another gun-related tragedy.

Lawrence Friedman is professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”