On Monday, the U.S. Supreme Court declined to review lower court decisions upholding sweeping bans on popular semiautomatic firearms enacted in Connecticut and New York in the wake of the attack on Sandy Hook Elementary School in Newtown, CT. The high court last December took a pass in a similar case originating out of Highland Park, a Chicago suburb. Justices Thomas and Scalia filed a written dissent from that earlier decision, stating, “noncompliance with our Second Amendment precedents warrants this Court’s attention as much as any of our precedents ….”
Noncompliance with the Second Amendment, unfortunately, has been exactly what the legislatures of various states have engaged in by enacting these bans, and it has also been the posture of most courts that have reviewed them. In the Highland Park case, for example, the majority opinion suggested that even if the ban's infringement of Second Amendment rights had no beneficial effect on safety whatsoever, it could still be justified by the false sense of security it might impart to local residents. A dissenting judge wrote, “Both the ordinance and this court’s opinion upholding it are directly at odds with the central holdings of [the Supreme Court’s decisions in] Heller and McDonald.”
Advocates for the Second Amendment and the rule of law briefly received a boost in February when a panel of the U.S. Court of Appeals for the Fourth Circuit remanded a case on Maryland’s semiauto ban to the trial court for reconsideration under strict scrutiny, the highest constitutional standard. Unfortunately, that panel ruling was vacated when the Fourth Circuit decided the case would be reheard before the full 15-member court. That rehearing occurred in May, and a decision remains pending.
Ironically, one of the most telling statements on the uselessness of the various state bans – and the draconian steps needed for them to have any effect – came from an advisor to the Obama White House. Greg Ridgeway, then Deputy Director of the National Institute of Justice – an agency whose mission, according to its website, is to “strengthen science” and “advance justice” – issued a report in January of 2013 that discussed the efficacy of various forms of gun control.
The leaked memo, apparently never intended for public release, contained a number of inconvenient truths for the administration. Among them: “Since assault weapons are not a major contributor to US gun homicide and the existing stock of guns is large, an assault weapon ban is unlikely to have an impact on gun violence.” Such a measure could only be effective, the memo opined, were it “coupled with a gun buyback [i.e., enforced surrender] and no exemptions.”
And, indeed, Barack Obama and Hillary Clinton are now advocating for just that.
The Supreme Court’s decision on Monday is something of a mixed blessing for Second Amendment advocates. On the one hand, it allows legislative and lower court defiance to go unchecked and emboldens those who are eager to act on the gun controller’s final solution of broad bans enforced by confiscation.
Yet with the passing of Justice Scalia earlier this year, it is far from clear that the Supreme Court would be willing to take the next steps implied by the landmark Heller and McDonald decisions. Some fear the current court, at best an even 4-4 split in support for the Second Amendment, is not even committed to upholding the individual rights view recognized in those decisions.
And whatever support does remain could be tilted by Scalia’s replacement (and would be, if Obama’s nominee were confirmed). That makes this year’s presidential election a referendum on your right to keep and bear arms, especially with Hillary Clinton making her confiscatory designs clear.