March 2, 2018   

 Let’s assume that Congress, urged along by a continuing popular demand for an end to firearm carnage, enacted stricter controls.  What would the Supreme Court do?   The Court’s actions and lower court decisions subsequent to Heller make prediction difficult.

 McDonald v. Chicago (2010), declared that: " in District of Columbia v. Heller . . . we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense . . . ."  Possession of a handgun in the home for self-defense, the actual holding in Heller, thereby was expanded to "keeping and bearing arms," apparently of any kind, for self defense, apparently anywhere.

 In 2015, the Court of Appeals for the Seventh Circuit, in Friedman v. City of Highland Park, upheld a municipal ordinance which "prohibits possession of assault weapons or large-capacity magazines."  In December, 2015, the Supreme Court denied review by a vote of 7 to 2.  Justices Scalia and Thomas dissented in an opinion written by Thomas, which asserted: "We explained in Heller and McDonald that the Second Amendment ‘guarantee[s] the individual right to possess and carry weapons in case of confrontation’.” Actually, Heller’s holding and McDonald’s restatement, as noted above, referred to self-defense, not confrontation. 

 

It’s true that  Heller said this: "we find that they [the terms of the Amendment] guarantee the individual right to possess and carry weapons in case of confrontation."  However, it also said this: "we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose."    

In Caetano v. Massachusetts, a state court decision had upheld a state law banning possession of a stun gun.  The rationale was that stun guns were unknown at the time the Second Amendment was adopted, and that they were not suitable as military weapons.  The Supreme Court reversed in March, 2016. As to the latter point, it invoked Heller’s rejection of  the proposition "that only those weapons useful in warfare are protected."  As to the former, it referred to Heller's "clear statement" that the Second Amendment "extends . . . to . . . arms . . . that were not in existence at the time of the founding," Call this the modern position.  However, the Heller opinion took both sides of this issue; the contrary theory is discussed in connection with the next case.

A concurring opinion in Caetano by Justice Alito, joined by Justice Thomas, stated that "the pertinent Second Amendment inquiry is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today." Given the range of weapons in private hands, that test would broaden the protection. However, compared to McDonald, an opinion written by Alito, the suggested formula adds two requirements: that the weapon be commonly possessed, and that the possessor be a law-abiding citizen.  (It drops self-defense, although that was the use involved in the Caetano case.) Given Thomas’ admiration for the Second Amendment, it is doubtful he intended further restrictions, so it’s impossible to know where this line leads.

In Kolbe v. Hogan, a District Court upheld a Maryland law which banned the AR-15 and other military-style rifles and  large-capacity magazines.  A panel of the Court of Appeals for the Fourth Circuit reversed but, in February 2017,  the full Court of Appeals affirmed the trial court.  It based its decision on the other Heller statement regarding modern weapons: "We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ . . . We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’."  Call this the anti-modern position. 

In expounding that position, Heller had added: "It may be objected that if weapons that are most useful in military service — M-16 rifles and the like — may be banned, then the Second Amendment right is completely detached from the prefatory clause [the reference to militia]. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty."  Relying on that, the Court of Appeals held that "the banned assault weapons and large-capacity magazines are among those arms that are ‘like’ ‘M-16 rifles’ — ‘weapons that are most useful in military service’ — which the Heller Court singled out as being beyond the Second Amendment's reach." Therefore, "the banned assault weapons and large-capacity magazines are not protected by the Second Amendment." 

The Supreme Court denied review, allowing to stand, as it had in Friedman, a law banning assault weapons and large-capacity magazines, even though the Court of Appeals’ decision on the modern-arms issue is contradictory to the opinion and result in Caetano.

In Peruta v. California, the Court of Appeals for the Ninth Circuit, reversing a panel decision, upheld a restrictive interpretation of the California ban on concealed weapons.  The Supreme Court denied review on June 17, 2017. Justice Thomas, joined by Justice Gorsuch, dissented; here is the issue, as described by the dissent:

"California . . . . proscribes concealed carry unless a resident obtains a license by showing ‘good cause,’ among other criteria, . . . and it authorizes counties to set rules for when an applicant has shown good cause."  In San Diego County, where the plaintiffs reside, "the sheriff has interpreted ‘good cause’ to require an applicant to show that he has a particularized need, substantiated by documentary evidence, to carry a firearm for self-defense. The sheriff's policy specifies that ‘concern for one's personal safety’ does not ‘alone’ satisfy this requirement."

Plaintiffs could not meet the test, "and, because the State generally bans open carry, are thus unable to bear firearms in public in any manner."  That might seem to be a good thing, especially to someone who might accidentally jostle a California cowboy, or "confront" him.  The dissenters are not of that view; this is their rationale: "As a result, ordinary, ‘law-abiding, responsible citizens,’ District of Columbia v. Heller, 554 U.S. 570, 635 (2008), may not obtain a permit for concealed carry of a firearm in public spaces."  That tangled sentence includes a quotation from Heller.  However, the passage cited says this: the Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."  A reference to defense of hearth and home becomes, in the dissenters’ view, part of a formula for concealed carry anywhere.   

Not only did the Court of Appeals limit concealed carry, the dissent complained, it failed to "answer the question of whether or to what degree the Second Amendment might or might not protect a right of a member of the general public to carry firearms openly in public."

Other decisions reflect the difficulty in applying a decision as confused as Heller .[22]

The most recent case is Silvester v. Berecca, another Ninth Circuit decision which the Supreme Court, on February 20, 2018, declined to review. Again Justice Thomas dissented.  The substantive issue was whether California’s ten-day waiting rule for gun sales violated the Second Amendment.  The Court of Appeals held that it did not, the Supreme Court’s refusal to take up the appeal left that decision standing, and Justice Thomas did not address the merits.  Instead, his dissent dealt with the standard of review; he contended that the Ninth Circuit applied the wrong standard. 

However, he added comments reflecting his frustration at the Court’s avoidance of the gun-control issue.  "The Ninth Circuit's . . dismissive treatment of petitioners' challenge is emblematic of a larger trend.  The lower courts, he said, are "resisting" Heller and McDonald.  "Our continued refusal to hear Second Amendment cases only enables this kind of defiance. We have not heard argument in a Second Amendment case for nearly eight years. . . . " 

I would like to think that Justice Thomas is right in contending that, "as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court."  It’s more likely that the other conservatives don’t know where they want to end up in the spectrum between Heller’s limited holding and its sweeping language.

____________________

22. The cases above and others were discussed at length in my post of July 11, 2016.

---