By Jeff Knox
(June 26, 2017) Though it is disappointing to report that the Supreme Court of the U.S. has rejected the petition for their review of the case Peruta v. San Diego County, the fact is that it’s better to have the case rejected than to have it heard and lost. And unfortunately, winning this case with the current justices wasn’t anywhere close to a sure bet.
The case, which challenged California’s “may issue,” concealed carry permitting system as it is applied by San Diego County, was closely watched by rights advocates nationwide since it could have finally affirmed that “the right of the people to keep and bear arms” includes the right to carry a gun for lawful purposes outside the home. It would also have addressed the divide between various circuits regarding the standards to be applied in ruling on Second Amendment cases.
Typically, any decision which impacts a constitutionally protected right is to be decided using what the courts call “strict scrutiny.” This standard requires that the state prove that they have a darn good reason for infringing on their citizens’ rights, and that they are doing so in the most narrowly tailored, and least restrictive manner possible to satisfy that darn good reason.
It seems obvious to rights advocates, that “strict scrutiny” should be the standard applied to any Second Amendment case, especially in light of the Heller decision, which affirmed that Second Amendment rights belong to individuals, and the McDonald decision, which recognized Second Amendment rights as “fundamental,” and applicable to the states. But that is not how some of the courts have viewed the matter. Instead of applying the “strict scrutiny” standard, they have used “intermediate scrutiny,” which merely requires that the state show that they have a “compelling interest” that motivates their infringement of rights, or the even lower standard of “rational basis,” which merely requires that a law be rationally relevant to achieving a government interest or goal. The “rational basis” standard places the burden of proof on the plaintiffs, requiring them to prove that the government’s actions are not rationally related to achieving the stated objectives, while “intermediate scrutiny,” and “strict scrutiny” place the burden of proof on the government, requiring them to prove that their infringements are necessary and within the parameters of the applied level of scrutiny. The biggest distinction between the three levels of scrutiny is that only under “strict scrutiny” does the government have to prove that their infringing laws and regulations actually work. In “rational basis” and “intermediate scrutiny,” the efficacy of the laws and regulations does not enter into the equation.
Anyone who has done any serious examination of gun control laws knows that they don’t work. That’s not pro-gun doctrine, that is the result of serious scholarship, much of it funded by the government. No provable cause and effect relationship has ever been found between restrictions on purchase, possession, or carry of firearms, and a decline in firearm-related crime or even unintentional injuries involving firearms. Those facts pose a serious problem for those who would defend infringements on the Second Amendment – if “strict scrutiny” were to be applied. So, courts have either sidestepped the issue by claiming that the laws don’t infringe on rights at all, or they have applied a lower level of scrutiny, so they can allow these unconstitutional laws to stand.
This decision by the Supreme Court demonstrates something that The Firearms Coalition has been saying since before the death of Justice Antonin Scalia: The Supreme Court does not have a pro-rights majority, and will not have one until at least two more justices are replaced.
Since Heller and McDonald, the Court has had several opportunities to review Second Amendment cases related to carry outside the home, and restrictions on firearms based on their appearance or the capacity of ammunition feeding devices. In every case, the Court has refused to take up the issue. This was true when Scalia was still alive, and it remains true now that Gorsuch is on the Court.
The good news that comes out of the Court’s decision to reject the Peruta petition, is that it appears to confirm that Justice Gorsuch is indeed solidly in the pro-rights camp. He joined in a dissent penned by Justice Thomas, contending that the Court should have agreed to hear Peruta, and settle these important issues.
The “liberal” wing of the Court has a solid block of 4 proven, anti-rights justices, but the “conservative wing appears to be split on the issue. Chief Justice Roberts and Justice Kennedy have indicated a reluctance to delve back into Second Amendment questions, while Justices Thomas, Alito, and now Gorsuch seem much more inclined.
The D.C. rumor mill is suggesting that Justice Kennedy, who is 80, might be preparing to retire, possibly at the close of the current term. A Trump replacement for Kennedy would probably shore up the pro-rights majority, but even if Kennedy’s replacement is as stalwart as Thomas, there would still be no guarantee for Second Amendment watchers. Roberts’ reticence to take any action that might shake up the judiciary, is well established, and 4 votes for rights is not enough to win the day.
Justice Ginsburg who is 84 this year, has been expected to retire any day for at least a decade, but she keeps charging ahead, and it is virtually inconceivable that she would willingly give up her seat knowing that Trump would name her replacement. If she is physically able, expect Ginsburg to hold out to at least the middle of 2020, when her retirement would become a major election issue in the presidential race.
There is another Second Amendment case on the Court’s docket, but we are not hopeful about its chances of being heard. The most promising case for getting a hearing, is the case challenging Maryland’s draconian “assault weapon” and “high-capacity” magazine ban. That petition won’t get to the Court until next term, at the earliest. The strongest thing going for it is the 4th Circuit’s blatant misrepresentation of the Heller decision in their ruling on it. It is very unlikely that the Court will allow that to stand, but they could just “summarily reverse” the decision, sending it back to the Circuit without hearing or offering a ruling. Right now, that seems like a likely possibility, but predicting Supreme Court actions and outcomes is like betting on roulette. Our energy is much better spent applying pressure to legislators.