A Court in Denial

Justice Brett Kavanaugh joined the Supreme Court in October 2018, taking over the seat from retiring Justice Anthony Kennedy. In January 2019, after nearly a decade of declining to hear a Second Amendment case, the Court granted review in New York State Rifle & Pistol Association v. City of New York. Many observers—myself certainly included—thought the new Court would have an increased interest in resolving questions about the substance and methodology of the right that Heller announced in 2008. But, after NYSRPA was dismissed as moot earlier this year, the Supreme Court this week denied review in the 10 cases it had been holding for NYSRPA. It’s not totally clear why. But one thing is clear: Justice Thomas thinks the Court abdicated its responsibility in doing so. In this post, I unpack his dissent from the denial of certiorari in one of these cases and question what’s next for the Second Amendment at the Supreme Court.

Of the 10 cases the Court was considering, several of them concerned one of the biggest open issues in Second Amendment jurisprudence today: does the Second Amendment extend outside the home and, if so, is that public right as broad as the private one? These cases came in the form of challenges to restrictive public carry licensing regimes—“may issue” or “good cause” laws—in New Jersey, Maryland, and Massachusetts. The First, Second, Third, and Fourth Circuits have upheld these restrictive laws. The D.C. Circuit has struck one down. And in September the Ninth Circuit will consider en banc a challenge to Hawaii’s restrictive law.

Thomas dissented from the Court’s decision not to review one of the pending New Jersey cases—Rogers v. Grewal. (Neither Thomas nor any other justice registered disagreement with the  decision to deny cert in every other case, including those concerning California’s Unsafe Handgun Act, assault weapon and high-capacity magazine bans, and others.) New Jersey requires that individuals who wish to carry firearms in public (open or concealed) obtain a license to do so. But not everyone can get a license. To do so, the applicant must establish that she has a “justifiable need” to carry the gun in public. The law dates back to 1924, when the state first enacted a licensing provision with a need requirement to carry firearms concealed. It was not until 1966, however, that the law covered open carry as well.

Thomas was joined by Kavanaugh for all but Part II of his dissent. In the introductory portion, Thomas argued that the Court’s failure to review the case treated the Second Amendment differently than the Court would treat restrictions on speech or abortion rights. Grewal, said Thomas, provides the Court “the opportunity to [(1])] provide guidance on the proper approach for evaluating Second Amendment claims,” (2) “acknowledge that the Second Amendment protects the right to carry in public,” and (3) “resolve a square Circuit split on the constitutionality of justifiable-need restrictions on that right.”

Part I of his dissent focused on the first point—lower courts need authoritative guidance from the Court on how to approach Second Amendment questions. In his view, courts rejected the “framework” Heller and McDonald established—text, history, and tradition—and substituted an “entirely made up” two-step inquiry. (As an aside, it’s hard to credit the view that a coverage-protection inquiry that includes tiers-of-scrutiny is a framework fashioned out of whole cloth. As I’ve written about in a forthcoming article, courts expressly note they are borrowing from the First Amendment when adopting the framework.) The two-part framework, Thomas contends, is in “blatant defiance” of Heller.

In Part II, the portion of the opinion that Kavanaugh declined to join, Thomas turns to the second reason he gives for granting cert—to acknowledge a public carry right. For him, “the right to carry arms for self-defense inherently includes the right to carry in public. This conclusion not only flows from the definition of ‘bear Arms’ but also from the natural use of the language in the text.” Thomas then goes through English and early American case law to bolster the point. He first analyzes the 1328 Statute of Northhampton, which has been the subject of a long-simmering dispute over its scope and enforcement. He takes the view that it was rarely enforced and even then only forbid arming oneself in public with ill intent. He then argues that founding era thinkers, like St. George Tucker, William Rawle, and James Wilson, also accepted a broad public carry right. Finally, he catalogues early Southern caselaw that broadly protected (mostly under state constitutions) a public carry right and Civil War sources suggesting the same for the federal Constitution.

Finally, in Part III (with Kavanaugh back on board), Thomas went on to his third point—the need for resolving the circuit split. Consistent with his view of proper Second Amendment methodology, he said that “[s]tates can impose restrictions on an individual’s right to bear arms that are consistent with historical limitations.” Although he strongly suggests a “good cause” regime like New Jersey’s would be unconstitutional, he simply concludes that the Court “should settle the conflict among the lower courts so that the fundamental protections set forth in our Constitution are applied equally to all citizens.”

It has been clear where Thomas stands for a while, as his frequent prior dissents from denial of certiorari show. But this dissent gives us new insight into the other justices. Notably, Kavanaugh joined the call for (1) a text, history, and tradition test, and (2) the Court to resolve the circuit split. The first point was one he made at length in his dissent in Heller II. The second was a point he made in his NYSRPA concurrence. But he declined to join Thomas’s historical tour. Maybe that was because Thomas answered the question without briefing on the issue. Or maybe Kavanaugh had doubts about Thomas’s historical excavation, which cited almost all pro-gun sources and dealt only once (and that only cursorily) with scholars who view the history differently; he did not even acknowledge, for example, more recent historical inquiry into Rex v. Knight by historian Tim Harris. Or Kavanaugh or other justices may have been concerned by what post-Heller corpus linguistic analyses seem to suggest, as my colleague Darrell Miller has written about. After all, no other justice chose to join any of the dissent, not even Part III simply calling for the Court to resolve the circuit split.

So what does that mean for what’s next? Well, Justice Gorsuch has joined a prior Thomas dissent from denial of cert—in a case raising a similar issue and that Thomas framed almost identically: “At issue in this case is whether [the Second Amendment] protects the right to carry firearms in public for self-defense.” Unless something has changed in the last two years about Gorsuch’s views of Heller or the Second Amendment, it’s not clear why he did not join the call to grant review here. As for Justice Alito I’ve noted his nuanced and hard-to-read views on the Second Amendment, which means he is not an automatic vote to grant review. And the Chief, for his part, just does not seem all that interested in wading back into the quagmire. (He took neither Heller nor McDonald to write and has not joined a single one of the dissents from denial of cert.)

I suspect there are not 5 voices on the conservative side that agree on the open issues, which explains why there are not the 4 votes needed to grant cert. These might be methodological disputes—such as whether the text, history, and tradition test that Thomas and Kavanaugh are pushing is proper; or they could be substantive ones—such as whether “good cause” laws are consistent with the Second Amendment whatever the methodology. It is also possible that enough justices just think the lower courts are generally getting it right. Or, conversely, it is possible enough justices think that as the lower courts are filled with more conservative jurists, they will gradually move the law toward greater protection for the Second Amendment without requiring Supreme Court intervention.

In terms of what’s next, I mostly have guesses. The major issues in Second Amendment jurisprudence—who the right protects, where the right can be exercised, and what weapons it covers—were all on the docket this year. So too were fairly unique laws, like California’s microstamping requirement, of the kind the Court might have been tempted to take to minimize disruption from a ruling. If the Court did not act on one of these, why would they ever take another? I can see at least a few ways a new case could get there (and I very well might be missing other ways):

1. SCOTUS’s hand gets forced. This could happen if, for example, a federal appellate court strikes down a key federal law, like a ruling that facially invalidates the felon prohibitor. I’d have to think the Court would then be forced to take the case.
2. A new or deepened circuit split. I’ve written about how surprising it is how few circuit splits there are in this area, but there are some. One, as noted, is on public carry. The Ninth Circuit could side with the D.C. Circuit in its case this fall and make the split deeper. That could put more pressure on the Court. Or a new split could develop or grow deeper in other areas, such as whether a person prohibited from possessing firearms can raise an as-applied challenge.
3. The election happens. It is possible that with all the hot-button issues on the docket this year, the Court did not want to generate more controversy around election time. Maybe the judicial appetite will return post-November.
4. Congress passes new/stricter gun laws. If a new Congress decides to pass a slate of new gun regulations, that might also put pressure on the Court to adjudicate the issues—especially if appellate courts are reaching conflicting conclusions on a question of federal law.

For now, though, it’s all a waiting game. There have been no major cert petitions filed recently, so we will not be hearing any news from the Court in the short term.