Justices Who Favor Gun Rights Fear Roberts Does Not

(Bloomberg Opinion) -- Americans have been fighting over guns with growing intensity since the onset of the culture wars in the 1960s. This week, the U.S. Supreme Court decided to sit back and let the battle rage. The court opted not to hear 10 different gun-rights cases, including some that would have enabled the justices to clarify key questions about the scope of the Second Amendment.

The court hasn’t decided a major gun-rights case since 2010, when it said the Second Amendment applies to states and cities. Gun-rights advocates, their appetite whetted by the landmark 2008 ruling in District of Columbia v. Heller, which established an individual right to gun possession, had hoped to rack up dozens of supplemental victories in the high court by now. But something keeps stalling their progress.   

It takes four justices to accept a case. There seems little doubt that Justices Samuel Alito, Neil Gorsuch and Clarence Thomas are strongly pro-gun rights. Justice Brett Kavanaugh, when he was a member of a lower court, wrote an opinion so gung-ho, it reads like an audition for a job with the National Rifle Association (or perhaps a plea for NRA backing, which was subsequently rendered, for a seat on the high court).

So why did the court refuse to hear any cases? “It wasn’t for want of a good case,” Adam Winkler, a law professor at the University of California, Los Angeles, and author of a book on the long history of contention over gun rights in the U.S., wrote on Twitter. “These 10 presented the justices with all the major open questions on the scope of the [Second Amendment].”

Justice Antonin Scalia’s majority opinion in Heller left unanswered such basic questions as whether gun rights extend outside the home and whether high-powered, yet popular, semi-automatic rifles can be banned. If the four pro-gun justices declined to accept cases to clarify those rights, Winkler suspects they fear that Chief Justice John Roberts would join the court’s four liberals to form a counter-majority.

“The long and the short of it is that it is becoming increasingly clear that Roberts is not in favor of an expansive reading of the Second Amendment,” Winkler wrote.

Many gun rights in America are not national. They depend primarily on where you live. In Georgia, you can legally buy a gun from a sketchy dude in a parking lot, load it with ammunition you bought for cash with no questions asked and then walk into a bar across the street. But if you live in California, you’ll find restrictions on what you can purchase — no large-capacity magazines or rifles that qualify as “assault weapons” — and you’d better be prepared for a background check on ammunition as well as firearm purchases. Also, you’ll have to skip the bar.

“Today’s decision leaves in place lower court rulings from multiple states across the country, upholding bans on assault weapons and large-capacity magazines, preserving strong standards for carrying guns in public, and upholding a range of state and federal gun laws,” said Adam Skaggs, chief counsel and policy director at the Giffords Law Center to Prevent Gun Violence. “Despite the appetite of several justices to take up new gun cases and expand the Second Amendment right, they will have to wait for another day. That said, there is no shortage of other cases in the pipeline, so the court won’t have to wait too long before having another chance.”

The court’s reticence leaves politicians in charge. In the wake of the Heller decision, states have moved in opposite directions on gun rights depending on whether they are dominated by Democrats or Republicans. Given the ease with which guns move across state lines, however, the red states’ lax laws influence crime and violence everywhere. A 2014 report found that 60% of guns used to commit crimes in Chicago from 2009 to 2013 came from out of state. 

The U.S. is home to a firearms industry that employs 150,000 people and generates $24 billion in direct economic impact, leaving plenty of money to invest in politics and law, as well as in marketing and public relations. Besides, some Americans love guns the way others love their pets. And because gun extremists are part of a reactionary coalition housed in one of the two main political parties, they are over-represented in U.S. politics.  

The urge to restrain the pathologies of gun culture is similarly basic. Roughly 100,000 Americans are shot each year, and both mass shootings and individual firearm deaths in the U.S. are so numerous, it’s become pointless even to compare them with those of any other developed nation. Children die because parents leave loaded guns readily accessible. In the face of mass death, the gun lobby and its political allies have one policy response: more guns, fewer restrictions.

The competing visions of gun rights are not easily reconciled. Each rests on the shaky foundation of the Second Amendment, a clumsily composed non sequitur conjured in an age of crude technology. The Supreme Court has opted, for now, to let the muddle prevail.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Francis Wilkinson writes editorials on politics and U.S. domestic policy for Bloomberg Opinion. He was executive editor of the Week. He was previously a writer for Rolling Stone, a communications consultant and a political media strategist.

©2020 Bloomberg L.P.