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Monday, December 07, 2015

New Gun Rights petition fails at SCOTUS

In Friedman v City of Highland Park there was an attempt to expand gun rights beyond was was granted in Heller and McDonald, i.e. the right to own a hand gun in one's home for protection. The idea was that everyone would be able to own whatever class of weapon they desired. Today the Court refused to grant certiorari to the petitioners.

One of my Goodreads friends, an attorney, posted an excellent review of what that means:

"Today, the US Supreme Court denied certiorari in the case of Friedman v. City of Highland Park. The US Court of Appeals for the Seventh Circuit had affirmed a District Court decision upholding a municipal ban on assault weapons. The Supreme Court, in an apparent 7-2 decision, refused to take an appeal from the Seventh Circuit decision. Consistent with the Supreme Court's usual practice when it denies writs of certiorari, the majority did not write an opinion. However, Justice Thomas wrote a dissenting opinion, joined by Justice Scalia. That dissent is set forth here.

There are many reasons why the Supreme Court may not grant a petition for certiorari in any given case. The majority of the Court may agree with the lower court's decision. Alternatively, they may believe that the particular case does not present the issues in a form in which a Supreme Court decision would be particularly useful. Accordingly, it is difficult to read into this denial of certiorari what the majority actually thinks. Based on the account of the case in Justice Thomas's dissent, however, it does appear that the majority may not be willing to go beyond the specific holding of Heller, discussed above in earlier posts, that the Second Amendment prohibits the banning of handguns in the home for self-defense. This denial of certiorari portends the possibility, feared by Thomas's dissent, that Heller may be limited to its facts.

That said, we probably will not know the extent to which the Supreme Court is willing, or unwilling, to extend Heller until a US Court of Appeals holds a ban on assault weapons to be unconstitutional (a scenario that will certainly happen, given the conservatism of some circuits, especially in the South). That will almost certainly prompt the Supreme Court to take the appeal, just as it was forced to take appeals relating to the Affordable Care Act ("Obamacare") when some but not all circuits held it to be unconstitutional. Accordingly, we will not know the Supreme Court's final determination of these matters unless and until it takes one or more additional Second Amendment cases. Today's rejection of the Friedman appeal does not, however, bode well for conservative judicial activist proponents of an expansive meaning of the Second Amendment. One wonders whether the recent mass shootings in San Bernardino and elsewhere caused some Supreme Court justices to rethink their positions on such issues. It only takes four of the nine justices to grant a petition for writ of certiorari. Justices Scalia and Thomas were not able to persuade even two additional justices to grant certiorari in this case.

An article about this decision in today's Washington Post observes:

"The court’s action Monday continues a pattern. After deciding in District of Columbia v. Heller in 2008 that the Second Amendment provides the right for an individual to keep a weapon in the home, the court has avoided all cases that might clarify if that right is more expansive.

"Gun rights advocates say cities and states continue to put unreasonable restrictions on the constitutional right. But the court has not yet found a case it thinks requires its intervention."
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