Why won't the Supremes directly address the Second Amendment? :: 10/17/2013

Constitution Check: Is the Supreme Court only willing to work at the fringes of the Second Amendment?

National Constitution Center By Lyle Denniston

Lyle Denniston examines evidence that the Supreme Court is not staying completely away from lawsuits involving gun rights. THE STATEMENT AT ISSUE: "The question presented is: Whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self-defense first prove a 'good and substantial reason' for doing so?"

- The issue raised by Alexandria, Virginia, attorney Alan Gura, in the Supreme Court case titled Woollard and Second Amendment Foundation v. Gallagher. On Tuesday, the Justices refused to review that case-as usual, giving no reason.

WE CHECKED THE CONSTITUTION, AND...

The Constitution's Second Amendment, the Supreme Court ruled five years ago, protects an individual's personal right to have a gun for self-defense. It has returned to the Second Amendment only once since then, in a decision three years ago extending that personal right across the nation, so that it can be used to challenge state and local gun control laws as well as such laws at the federal level.

Since then, more than a half-dozen test cases on the issue have been filed at the court, and each one has been bypassed. It appears that no one on the court is pushing to return to the issue; it takes four votes on the bench to grant review, and there is no reliable indication that any case has drawn even one vote.

When the Supreme Court ruled in 2008 in the case of District of Columbia v. Heller, it declared that the personal right to a gun is a "fundamental" right, subject to only "reasonable" restrictions-such as barring criminals or the insane from having access. But that case only dealt with having a gun in one's own home. Since then, gun rights advocates and their lawyers have pursued many challenges, seeking to expand that right beyond the home, into public places.

Although lower courts have issued an array of differing and sometimes conflicting decisions (the pattern that usually draws in the Supreme Court), the scope of the Second Amendment right is still in a kind of constitutional limbo. It remained there on Tuesday, when the Justices turned aside an appeal by a Maryland man, Raymond Woollard, who lives near Baltimore. He once had a permit to have a gun that he could carry outside his home, because he had shown he faced a potential threat from a son-in-law who had shown violent tendencies. But when he tried to get the permit renewed, he was turned down, on the premise that he had not proved that he still faced a threat to his safety.

The court's refusal to hear his appeal came quickly, after the Justices' first fleeting look at the case. That has been the pattern for the past several years.

The Justices, however, are not staying completely away from lawsuits involving gun rights. On the same day they turned down Woollard's appeal, they agreed to spell out when it is illegal for a buyer of a gun to purchase a gun for someone else, when both the buyer and the recipient are not barred legally from having a gun. That is the issue in the case of a Virginia man, Bruce James Abramski Jr.

And the Court already has scheduled review of a case involving a Tennessee man, James Alvin Castleman, who challenged a federal law that denies gun rights to a person convicted of domestic violence.

But neither of those cases involves a claim under the Second Amendment; both turn on the scope of a federal criminal law.

The message that the Supreme Court has seemed to be sending-at least up until now-is that it is in no hurry to resolve open questions about how far constitutional gun rights extend. It has not even agreed to spell out in a final way the constitutional test that it will apply to judge the validity of any specific gun control law.

As this trend continues, it tends to put an exaggerated emphasis on each new case that reaches the Supreme Court: Will this be the one that will finally get the Justices' attention; if not, what will it take? Since the Supreme Court is the sole entity to determine the scope of the Second Amendment right (aside from the legislatures that can put together a clarifying constitutional amendment), judges and legislators across the country have to wonder when they will get new constitutional guidance.

The court will shortly have two more opportunities to take up a significant Second Amendment case. Both, by coincidence, involve appeals by the National Rifle Association. One is a challenge to a federal law that bans licensed gun dealers from selling handguns to minors. The second one involves a challenge to a series of Texas laws that make it a crime for anyone under age 21 to carry a handgun in public, even for self-defense.

Related Story: Lyle Denniston: The NRA takes on the courts

Both petitions, filed by prominent lawyers well known to the Court, make strongly worded pleas for the Supreme Court to step in and sort out some of the most important unresolved issues about the Second Amendment and how it applies to gun restrictions that apply to possession in public. But is the fact that they were filed by the NRA-the nation's most energetic promoter of gun rights-a deterrent? The Court is not supposed to judge cases based upon who files them, but is it ready to take on a case that could lead to expansion of gun rights at the specific request of the NRA?

There are few social issues that keep stirring up public controversy in the heated way that gun rights and gun control regularly do. But at some point, constitutional division or uncertainty will get to the point that Supreme Court review might become very compelling. In coming weeks, the nation will know whether the NRA has been able to get the court's attention.

Lyle Denniston is the National Constitution Center's adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.