At its conference on February 21, SCOTUS had petitions for certiorari - requests for the Court to accept appeals from Federal court decisions - in three significant gun rights cases. This morning, February 24, the Court announced that it was declining to review all three.

The conference room of the United States Supreme Court

Lane v. Holder: Do consumers have standing to challenge Federal gun laws that restrict sales across state lines? (In this case, DC residents want to buy firearms in Virginia but cannot have them transferred, as the law requires, through a dealer in DC because no Federally licensed dealer is currently doing business in the District.)

NRA v. BATFE: Is a 1968 Federal statute constitutional that forbids Federally licensed gun dealers to sell handguns to individuals under the age of 21?

NRA v. McCraw: Is it constitutional for Texas to bar 18-20 year olds from carrying concealed handguns in public? (About two-thirds of the states have such a law.)

Several dozen gun rights cases have been pressed upon the Court since SCOTUS decided Heller in June 2008. It took only one other Second Amendment case, McDonald in 2010, which simply extended to the states Heller's right to have a gun for self-defense in one's home.

Below the surface squiggle, some speculations ...

Disclaimer. What follows is general information on a law topic. Nothing in this diary constitutes legal advice and it is not to be acted on as legal advice.
Reporter Lyle Denniston put the Court's choices succinctly in ScotusBlog:
The Court has the option, if it is going to grant review of any of the cases, of taking on the broader issues of gun rights outside the home, or gun rights for young adults, or of examining only the narrow question of who has a legal right to go to court to challenge gun control laws.
It takes only four justices to agree to accept a case for review. That allows a minority - or a majority with one very hesitant justice - to bring a case to the court for argument.

Before we speculate, here are a few paragraphs from the Heller v. DC, the seminal Second Amendment gun rights decision written by Mr. Justice Scalia for a five member majority:

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.

Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home. ...

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici [individuals and groups who filed "friend of the Court briefs] who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. (see supra, at 54–55, and n. 26.) But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.

The text from pp. 54-55 and fn 26:

Like most rights, the right secured by the Second Amendment is not unlimited. …

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (fn.26)

26. We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

Gun rights advocates have scorned these words as "dicta." Dicta is language in a court opinion that is gratuitous, unnecessary to the holding in the case, and therefore not significant to the evolution of precedent. Each time SCOTUS has declined to take a Second Amendment appeal, the other side points to these words from Heller as cautionary.

What to think of this morning's action?

Upon only brief consideration, why did no more than three justices - if that many - want to hear these cases?

One possibility is exactly what J. Scalia wrote, the Court wants to see the law evolve in lower courts, state and Federal, and the actions of legislatures, state and Federal, before advancing beyond Heller and McDonald. Almost six years is not long enough.

Another possibility for not taking these cases is that the Heller majority was fragile. Possibly, that cautionary language in Scalia's otherwise pretty blustery opinion (read it; he really did come down hard on the strong dissents of Justices Stevens and Breyer) assured a fifth vote for the Heller holding, while putting a fence around it. Accordingly, why take more constitutional gun rights cases if doing so might risk advancing the cause of gun rights? Under this notion, not taking the cases is far preferable to a loss.

Or, perhaps, these just weren't the right cases. One could dismiss Lane as a case of standing (which it was), not 2A rights. But the attorney in Lane v. Holder is Alan Gura, the lead and winning lawyer in both Heller and McDonald. In my view, he used all the right arguments in his Petition for certiorari. The BATFE case raised a right for 18-20 year olds to buy handguns from Federal dealers. The McCraw case was the classic extension of Heller - the right to carry handguns in public for self-defense. Moreover, the NRA was represented by Paul Clement, an accomplished Supreme Court advocate who - irony of ironies - also participated in the Heller arguments when he was the Solicitor General ... and endorsed overturning the DC handgun ban!

I don't agree that these weren't the right cases. Being on the side of not extending Heller, I'd like to hope the Heller majority was at risk, but that is sheer speculation.

My own view is that this is just not yet the time for more High Constitutional Law on this subject, six years notwithstanding. After all, some forty state constitutions (at last count) do constitutionally protect firearms in one fashion or another. There is plenty of heft in the lobbying muscle of the gun rights groups to secure legislation in many states.

What do you think?

UPDATED to correct a description of the two NRA cases in the fourth last paragraph.

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Originally posted to Firearms Law and Policy on Mon Feb 24, 2014 at 08:08 AM PST.

Also republished by Shut Down the NRA and Repeal or Amend the Second Amendment (RASA).

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