Lyle Denniston: Are gun rights withering away?

So argues Lyle Denniston, the National Constitution Center’s constitutional literacy adviser:

THE STATEMENT AT ISSUE

“The dire warnings that the U.S. Supreme Court’s recognition of an individual right to bear arms would lead to a wholesale voiding of gun-control law seem to have been overblown. The most recent case in point: the Justices on Monday declined to review a San Francisco gun law that was remarkably similar to one they struck down in a landmark ruling in 2008 [District of Columbia v. Heller]….To be fair, the Heller ruling did contain some caveats that some people might have paid more attention to…Turns out most gun laws fit within these categories. But arguably not San Francisco’s, so if that law didn’t get voided by the Justices, what else is left of Heller?”

– Patrick Oster, a writer for Bloomberg News, in an online column on June 9, under the headline: “Supreme Court’s Landmark U.S. Gun-Rights Ruling Not So Landmark.” The story analyzed the Justices’ refusal to review the constitutionality, under the Second Amendment, of a San Francisco ordinance limiting gun owners’ access to their handguns within the home.

WE CHECKED THE CONSTITUTION. AND…

Constitutional change usually does not happen quickly in America, whether it is a change that brings a new understanding, or a change that abandons an existing doctrine. It thus is usually premature to read too much into an action by the Supreme Court that seems to be profound, but may not turn out to be in the course of constitutional time.

But if the court acts in a series of steps that, together, have the look of a trend, it may be appropriate to ponder a larger meaning in those steps. That is what may well be happening now with one of the Constitution’s most controversial provisions: the Second Amendment.

***

The Supreme Court, following its now well-established pattern, simply denied review of [the Jackson v. San Francisco] case on Monday. The appeal drew the publicly noted support of only two members of the court – Justice Clarence Thomas, who wrote a dissent joined by Justice Antonin Scalia.   It would have taken the votes of four Justices to grant review.   Failing to get that number, the appeal was denied, and the San Francisco ordinance was left untouched, with no explanation from the court

“Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense,” Justice Thomas wrote, “lower courts, including the ones here, have failed to protect it.” He added that the lower court decision in favor of the San Francisco ordinance “is in serious tension with Heller.”

Because of that argument, the denial of review in this case might well mean more than all of the other denials of appeals by the Justices in gun-rights cases in recent years. There is apparently a deep-seated resistance, among members of the court, to their reopening of the Second Amendment controversy. It might be speculated that there is a sense within the court that it would be very hard to assemble a majority behind a new clarification of this personal right, so the task should be left, case by case, to lower courts.   And maybe they are awaiting a “perfect” test case, although it is hard to imagine what such a case might be.

Whatever the reason for remaining on the sidelines, the court has left the Second Amendment in what almost certainly is a diminished state – at least for the time being.

Read the article at the NCC’s Constitution Daily blog.