Today the Supreme Court declined to hear the Peruta case. The Peruta case was about whether or not states could require citizens to show “good reason” to exercise their constitutional right to bear arms, like New Jersey does. Their refusal to hear the case does not mean that they agree with the lower court’s ruling on the issue, but it does mean that for now we’re stuck waiting for the Supreme Court to once and for all declare what we already know; that we have a constitutional right to carry firearms for self-defense.
The issue may come down to Justice Anthony Kennedy, who is rumored to be retiring soon. Kennedy has been the Court’s perennial swing-justice for nearly 30 years now. He was part of majorities in the Heller and McDonald cases which recognized the Second Amendment as a fundamental individual right. However, the other justices , both liberal and conservative, may be reluctant to take a case if they’re not sure where Kennedy will end up on the issue.
It only takes four Justices to vote to take a case, so say four pro-2A justices vote to take a case, and then Kennedy decides he doesn’t believe in the 2A that much. The result would be disastrous for the Second Amendment. The same is true of the liberal justices. Perhaps they would want to take it to enshrine gun control in the states that have it, but then Kennedy sides with the pro-2A side. This result would be equally disastrous to gun control supporters. It appears the reason cases aren’t being taken is because neither side is sure how it will end up and doesn’t want to be responsible for the outcome going awry for their side.
There is also scuttlebutt in the legal community that the Justices are waiting for “just the right case” and some have pointed to the concealed carry case in Washington DC, Palmer v DC as the one the Justices want to take. This may be, lawyers think in odd ways. These however are mostly rumors and the more likely scenario is the one listed above. Which is that neither side wants to take the case, because they don’t know how it will end due to the swing vote Kennedy being known to be all over the place.
There is a silver lining to all this. We learned where recently appointed Justice Neil Gorsuch stands on the Second Amendment. He joined in a fiery dissent (Peruta case is on Page 30) along with Justice Clarence Thomas that demanded the Court take this case and other Second Amendment cases in order to protect the rights of citizens living in states that do not respect the Second Amendment.
Here are some of the notable quotes from the dissent:
In regard to the lower court holding that demanding “good cause” is acceptable treatment of a fundamental right.
We should have granted certiorari in this case. The approach taken by the en banccourt is indefensible, and the petition raises important questions that this Court should address. I see no reason to await another case.
On how Heller speaks clearly on the issue of carrying firearms for self-defense.
As we explained in Heller, to “bear arms” means to “‘wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.’” The most natural reading of this definition encompasses public carry. I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.
Discussing his discontent over the fact that the Supreme Court has not been appropriately protecting the Second Amendment for 7 years now.
The Court’s decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right. See Friedman v. High- land Park, 577 U. S. ___, ___ (2015) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 6) (“The Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions”); Jackson v. City and County of San Francisco, 576 U. S. ___, ___ (2015) (same). The Constitution does not rank certain rights above others, and I do not think this Court should impose such a hierarchy by selectively enforcing its preferred rights. Id., at ___ (slip op., at 1) (“Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document”). The Court has not heard argument in a Second Amendment case in over seven years—since March 2, 2010, in McDonald v. Chicago, 561 U. S. 742. Since that time, we have heard argument in, for example, roughly 35 cases where the question presented turned on the meaning of the First Amendment and 25 cases that turned on the meaning of the Fourth Amendment. This discrepancy is inexcusable, especially given how much less developed our jurisprudence is with respect to the Second Amendment as com pared to the First and Fourth Amendments.
And finally he basically calls out the rest of the court reminding them that while they remain protected behind armed guards, the rest of America depends on the Second Amendment for their self-defense.
For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.
We agree Justice Thomas and Gorsuch.
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