Dangerous Disorder in the Court

The Federal Court of Appeals for the 2nd Circuit has once again come down with a shameful ruling based on selective interpretation of the Supreme Court’s narrow rulings in Heller and McDonald, the landmark Second Amendment cases decided in 2008 and 2010. In this latest abomination from the courts, the three-judge panel concluded that New York and Connecticut’s laws banning virtually all semi-auto rifles as “assault weapons” and all “high-capacity” magazines do indeed “burden” and infringe on citizens’ rights under the Second Amendment, but they go on to conclude that the states’ “compelling governmental interest in public safety and crime prevention” carry greater weight than individuals’ rights to self-defense – in spite of the fact that “assault weapons” are rarely used in crime. When they are, it is unusual for more than a few shots to be fired, and laws restricting them and “high-capacity” magazines have proven useless in practical application. Conspicuously missing from the court’s reasoning was any reference to the militia or to the previous, primary Supreme Court ruling on the Second Amendment, U.S. v. Miller.

The Second Amendment is composed of two clauses – the prefatory clause, “A well regulated militia being necessary to the security of a free state,” and the operative clause, “the right of the people to keep and bear arms shall not be infringed.” In Miller, the high court commented that this militia relationship had to be considered in any judgment regarding the right to arms. They went on to conclude that since they weren’t aware of a short-barreled shotgun being a normal part of militia equipment, such an arm was not protected under the Second Amendment.

For almost 60 years after the 1939 Miller decision, lower courts misused the “militia” comment to mean that the right to arms only applied to people actively enrolled in a government-sanctioned militia. Had that been the justices’ intent, Miller’s claim would have been rejected because he was not a militia member. Instead, his claim was rejected because his gun, a sawed-off shotgun, was not recognized as a common militia weapon.

By focusing on self-defense, the Heller decision didn’t negate the Miller decision. On the contrary, it expanded it. Miller addressed the Second Amendment from the perspective of the people’s ability to effectively participate in the militia if called upon to do so, and specifically addressed the types of arms protected for that purpose. Heller recognized that the right extends beyond militia purposes to include the right to arms for self-defense. For any court to rely solely on one of these decisions without any consideration for the other is an outrage, but courts are now ruling as if Miller had been completely repudiated. It was not.

It should be understood that only the Supreme Court has the authority to interpret the Constitution. Lower courts are required to rule based on established precedents and principles set by Supreme Court decisions. Further, the Supreme Court itself is heavily bound by its own precedent under a doctrine known as stare decisis, a Latin term meaning “the decision stands.” Rulings made by the court in the 1700s and 1800s are still in effect and binding upon the Supreme Court and all lower courts, unless the Supreme Court specifically revisits the issue and reverses that previous decision. That is something that almost never happens. Instead, the Supreme Court goes through elaborate legal gymnastics to work around conflicting precedents, and the lower courts do the same thing. Only the Supreme Court can ultimately decide whether the lower court contortions are acceptable, but there is nothing to compel them to accept a case for review. Over the past few years there have been numerous cases regarding Second Amendment issues that have been appealed to the Supreme Court with conflicting rulings from lower courts, but the Supremes have doggedly refused to take up those cases.

The decision to review a case requires only the agreement of four of the nine justices. The court’s refusal to hear Second Amendment cases probably rises from the fact that the panel is evenly divided on Second Amendment issues. Four of the justices have made it clear that they do not agree with the court’s holdings in Heller and McDonald. Justices Breyer and Ginsburg both dissented in Heller, and newly confirmed Sotomayor joined them in dissent against McDonald. While Justice Kagan has not been tested on a Second Amendment case, her views are pretty clear. On the other side, Justices Thomas, Scalia and Alito have demonstrated a pretty firm commitment to rational interpretation of the Second Amendment, and Chief Justice Roberts seems inclined to go along with them, as long as the decision isn’t too disruptive to the status quo. The real wild card on the court is Justice Kennedy. He voted in favor of both Heller and McDonald, but it was clear that he had reservations. It is very likely that Kennedy is refusing to make clear his position on cases regarding bearing of arms for self-defense outside the home or bans on “assault weapons,” leaving both sides wondering where he would come down on these issues and leaving neither side with enough confidence to push forward with a hearing on any of these cases.

As I have pointed out several times before, several members of the Supreme Court are likely to retire sometime soon. Justice Ginsburg is the oldest at 82 and in frail health. Next oldest are Kennedy and Scalia, who will both turn 80 in 2016. Of the three eldest members, Scalia’s view is reliably “conservative,” Ginsburg is reliably “liberal,” and Kennedy is the perpetual swing justice, whose votes decided both Heller and McDonald. Odds are increasingly good that time will catch up with at least one of these three, and possibly one or two more within the next four years. The balance of the Supreme Court is at stake in the coming presidential election, and in the Senate elections where the next Justices will be confirmed. It’s up to GunVoters to see that decisions like this latest 2nd Circuit outrage do not stand and that Heller and McDonald are not washed away in a political tide.

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