The national conflagration (it would be irresponsible to call it a discussion or debate, except to the extent it happened here) over gun rights and gun regulation blew up yesterday, when the Supreme Court poured gasoline on it in the form of a denial of certiorari, what Elie Mystal called “a rare loss for the gun lobby.”
At issue in the new case, Friedman v. City of Highland Park, was the constitutionality of a 2013 ordinance. It prohibited the sale, purchase, or possession of semi-automatic guns, including those used with magazines with more than ten rounds of ammunition. It was agreed, during a challenge to the ordinance, that the ban includes the widely popular AR-15 rifle — the civilian equivalent of the military’s standard M-16. The challengers contended that these are not machine guns, because a pull of the trigger only fires one shot, not repeated firings.
The court’s order didn’t explain the reasoning behind the decision, but two justices, Clarence Thomas and Antonin Scalia, split with their colleagues and laid out why they would’ve agreed to hear the case.
The Supreme Court’s refusal to hear the case could be read as an indication of the justices’ unwillingness to further define the contours of the Second Amendment in light of the current political climate.
Because in the absence of any explanation, speculation fills the void.
“The justices don’t reveal their reasons for denying review, but one thing is clear,” said Adam Winkler, a law professor at the University of California, Los Angeles. “The justices certainly aren’t eager to take up a Second Amendment case these days.”
“One has to wonder,” he said, “if the Supreme Court is having second thoughts about the Second Amendment.”
Or it means nothing of the sort, but the readers of the New York Times are filled with hope, fueled by a law professor suggesting a return to an outcome that meets their desires, that the justices have seen the light and realized that the dreaded “assault weapons” they foisted upon the public are a nightmare that must end. Should they be?
Justice Clarence Thomas wrote a dissent to the denial of cert, joined by Nino Scalia.
“Roughly five million Americans own AR-style semiautomatic rifles,” Justice Thomas wrote, referring, he said, to “modern sporting rifles.”
“The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting,” Justice Thomas wrote. “Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.”
And indeed, under the existing state of the law, this is absolutely correct, even if many think it’s dangerously wrong. Second Amendment advocates tried desperately to spin the denial of cert back to neutral.
Chuck Michel, president of the California Rifle and Pistol Association, said the dissent made powerful points. “It is only a matter of time,” he said, “before the Supreme Court takes a case, sets things straight, and properly subjects this and similar unconstitutional laws to renewed challenge.”
Being on the downslope of this ruling, the pro-gun narrative rings hollow. On its surface, and from the dissent, it would certainly appear as if the Supreme Court punted when it took a pass on considering a 7th Circuit opinion where Judge Frank Easterbrook kicked sand in the face of the Supreme Court and challenged it to smack him down.
If it has no other effect, Highland Park’s ordinance may increase the public’s sense of safety. Mass shootings are rare, but they are highly salient, and people tend to overestimate the likelihood of salient events. See George F. Loewenstein, Christopher K. Hsee, Elke U. Weber & Ned Welch, Risk as Feelings, 127 Psychological Bulletin 267, 275–76 (2001); Eric J. Johnson, John Hershey, Jacqueline Meszaros & Howard Kunreuther, Framing, Probability Distortions, and Insurance Decisions, 7 J. Risk & Uncertainty 35 (1993). If a ban on semi‐ automatic guns and large‐capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit. Cf. Frank v. Walker, 768 F.3d 744, 751 (7th Cir. 2014).
Rarely has a court offered a rationale less grounded in substance than this, where the feelz of the clueless are sufficient to justify the deprivation of a constitutional right despite lack of any founded belief. What you gonna do about it, SCOTUS?
That the dissenting justices couldn’t get Sam Alito to go along with cert is clearly a troubling indicator. But that the Court, as a whole, decided to leave the issue hanging, and thus invite rank speculation, is the most significant problem. And the Supreme Court, by denying cert, abdicated its responsibility to give the nation an answer, one way or the other.
They’re not exactly overworked. If there was a problem with the case that made it inappropriate for the purpose addressing this hugely inflammatory issue, they could have said so. It’s not that the Court must address an issue of such significant controversy just because someone filed a cert petition. There are tons of reasons why this didn’t strike the justices as the right case for review, none of which have anything whatsoever to do with the propriety of the Highland Park law at issue or their change of course on the Second Amendment.
But they didn’t. They denied cert and offered no explanation. They fed the speculation on the day after the President of the United States called for a nation to ignore the Supreme Court’s rulings and do what makes people feel better without regard to the Constitution. By their neglect, their failure to fulfill their mandate, the Court didn’t demonstrate humility and judgment, but threw fuel on a fire.
There is no more political act than to inflame the public divide by their silence. The denial of cert may mean something or may mean nothing. That the Supremes left us hanging, and thereby inserted themselves into this controversy, is outrageous and irresponsible.
Update: Not that it comes as a surprise, but the New York Times offers its editorial 2 cents:
By not taking the Illinois case and dozens of others like it, the court makes it clear that states and cities have wide latitude to pass tough, effective gun laws to protect their citizens.
It’s fine for the Times to editorialize that it hates guns, it hates Heller and it advocates for its reversal. But the editorial board is comprised of intelligent people, somewhat knowledgeable about issues of law sufficient to grasp that denial of cert is a non-decision. Yet, they sell their souls to write “the court makes it clear” when they know that’s a lie. In the name of their cause, they forfeit their integrity and lie to their readers. And they know it.