A SCOTUS Non-Decision Adds To Gun Confusion (Update)

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.

Clearly, the case raises core issues that facially conflict with the Supreme Court’s Heller and McDonald decisions, and so their denial of cert means

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.

22 thoughts on “A SCOTUS Non-Decision Adds To Gun Confusion (Update)

  1. Keith

    “We cautioned courts against leaving the rest of the field to the legislative process”

    Please. SCOTUS didn’t do anyone any favors by being chickenshit when it came to describing the right. You don’t have be so narrow when you decide the core question presented that you can’t give any guidance whatsoever to the most obvious question post-Heller: if that’s the core of the right (home use), what about what they can have and outside the home.

    Maybe that’s the cost of getting a 5th vote, but it’s ridiculous to let this drag on forever with lower Courts picking and choosing where the outlines of the right might be.

    1. SHG Post author

      The legislative process plays no role in defining the parameters of the Constitution, as has been our rule since Marbury v. Madison, and if Highland Park’s law is unconstitutional, then it’s up to the Supreme Court to say so. That’s its purpose, for better or worse.

  2. Fyodor

    Just to clarify, this quote from the source article is a little poorly phrased, since it makes it sound like all semi-automatic weapons (pistols, etc) would be banned.

    ” It prohibited the sale, purchase, or possession of semi-automatic guns, including those used with magazines with more than ten rounds of ammunition. ”

    The statute is below. Without getting into the merits of the actual ordinance, it’s not quite as broad as the Scotusblog summary suggests since the magazine capacity is a non-optional requirement.

    “As the Petitioners note, the City of Highland Park’s Ordinance defines an “Assault Weapon” as a
    semi-automatic firearm with the capacity to accept more than ten rounds of ammunition and at least
    one of five described features:
    1. a pistol grip without a shoulder stock;
    2. a protruding grip for the non-trigger
    hand;
    3. a folding, telescoping or thumbhole
    stock;
    4. a barrel shroud; or
    5. a muzzle break or compensator. “

    1. SHG Post author

      I try to avoid giving small minds a reason to quibble over irrelevant details so they have half a chance of focusing on the conceptual issue rather than irrelevant details. Small minds hate concepts when irrelevant details are so much easier to focus on.

    2. Strife

      Wouldn’t that definition include any handguns with a nine round (plus one in the chamber) capacity, including any one that has non-standard extended magazines?

      1. Keith

        “Wouldn’t that definition include any handguns with a nine round (plus one in the chamber) capacity”

        I think “more than ten” usually means nine and at least two more, but I’m not a lawyer, so they may have a different calculation.

        But the capacity to accept typically means that the size of your current magazine is irrelevant. It can accept any amount if you find a magazine with that amount.

        I try to avoid giving small minds a reason to quibble over irrelevant details so they have half a chance of focusing on the conceptual issue rather than irrelevant details.
        You win this round.

  3. Fyodor

    Thanks!

    It’s not an irrelevant detail- a ban on all semiautomatic weapons would be pretty broad. The scale of the ban that the Supreme Court ignores is important, even if as you note, the denial of cert isn’t a substantive decision.

    Other legislatures may use this as a roadmap for what they can get away with. If it were in fact the case that a challenge to a ban on all semiautomatic weapons was denied cert we would see other pro-gun control cities and states trying something similar.

    1. SHG Post author

      So your “conclusion” is that, while the denial of cert means nothing, the denial of cert means that bans of this scale are acceptable. This is precisely the blind leap that shouldn’t be taken from this non-decision, and so you close your eyes and dive right in. Wonderful.

      If it makes you feel any better, I suspect most people will agree with you, reading into this non-decision what they want it to mean and thus perpetuating the pathological ignorance that pervades American political discourse. And this is why the Supreme Court’s denial of cert is an abdication of responsibility that has fed national stupidity.

  4. Fyodor

    “So your “conclusion” is that, while the denial of cert means nothing, the denial of cert means that the bans of this scale are acceptable. This is precisely the blind leap that shouldn’t be taken from this non-decision, and so you close your eyes and dive right in. Wonderful.”

    Yeah, you’ll have to point out where I said that such bans were acceptable or constitutional. I wrote four whole sentences so it shouldn’t be too hard. I said that legislatures might use this as a roadmap for what they could get away with and try something similar.

    As you said

    “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.”

    Why does their silence matter? Because decision makers might rely on their silence as agreement or consent. So yeah, the scope of the laws they choose to ignore and/or be silent about does matter quite a bit.

  5. Jay

    You mad bro? SCOTUS doesn’t like to reverse things because they’re wrong, that’s old news. They wait for splits, or at least until most jurisdictions have ruled on an issue. Heller is only 5 years old. SCOTUSblog and the rest of the court watchers really ought to know better than pretend this even amounts to tea leaves. As for SCOTUS itself, I don’t know if we’d all be thrilled if they took every important issue all the time. Waiting like this is their nod to federalism. Though I agree the 7th circuit’s opinion is contemptible, I respect the justices not biting yet. I’d imagine they’ll at least want an opinion from the 4th or 5th circuits before they weigh in.

    1. JAV

      The SCOTUS staying out of this case just ensures years of similar bills and equally similar challenges in the courts. At what point is this less than “a nod to federalism”, and more clogging the courts over a constitutional point that needs clarification, and shouldn’t require the SCOTUS waiting years for so X states and X circuit courts to get their 10 cents in?

      1. SHG Post author

        That point was yesterday.

        And just so it’s clear, there is no basis to assume it’s for lack of a circuit split, a nod to federalism or anything else. We don’t know what it is. We only know what it isn’t, which is a decision on the merits.

  6. Ahcuah

    “That the dissenting justices couldn’t get Sam Alito to go along with cert . . .”

    Speculation. It is possible that Alito voted to grant cert but declined to join Thomas’ dissent. (And have fun trying to read those tea leaves.)

  7. DaveL

    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.

    That’s odd, somehow this ruling’s language doesn’t make me feel safer. In fact it’s rather terrifying.

    1. Patrick Maupin

      Just ’cause it’s exactly the same sort of reasoning a farmer might apply to decisions that affect his cows is no real reason to be alarmed, is it?

  8. Alex Bunin

    Good post, and this is not meant to be critical of you, but the headline just reminded me. Every time I see an article with the initials “PD” I am tricked into thinking it is about public defenders. It is much like when I lived in upstate New York and saw a New York Times article with the word “Albany” — which is their shorthand for anything involving the legislature or the Governor, not the actual city. I feel like Charlie Brown trusting Lucy to tee up a football. Again, not your fault.

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