by William G. Merkel, Associate Professor of Law, Charleston School of Law
This week, the Supreme Court declined to hear the case of Friedman v. Highland Park. By denying Friedman’s petition for a writ of certiorari, the Court let stand the moderate and sensible opinion of Seventh Circuit Judge Frank Easterbrook upholding Highland Park’s assault weapons ban against a Second Amendment challenge. The announcement prompted a vigorous dissent by Justice Thomas (joined by Justice Scalia).
Seventy-five years ago, Justice Frankfurter cautioned against reading too much into Supreme Court decisions to deny cert and, in particular, against assuming that the failure of particular justices to join a written dissent indicated agreement that the case should not be heard or that the decision below was correct. But Monday’s decision has been much discussed these past few days among Supreme Court watchers and political pundits. It counts as a very big deal among gun rights enthusiasts and gun rights skeptics who have been vigorously litigating, lobbying and politicking all questions related to gun control and gun rights since the Supreme Court first enforced a Second Amendment right in District of Columbia v. Heller in 2008.
That case, and Justice Scalia’s opinion for a 5-4 majority, recognized (or, as some naysayers would have it, invented) a right to have operable handguns in the home for purposes of self-defense. But Scalia’s Heller opinion did much more. It also stated that the Second Amendment right rests in the ability to keep and bear arms for purposes of confrontation and then proceeded to list (without any explanation) various types of presumptively valid regulations and restrictions, including prohibition on possession by felons and the mentally ill, exclusion of guns from certain sensitive places such as schools and government buildings, and barring possession of uncommon or dangerous weapons. The Heller decision was extended to reach gun restrictions enforced by states and municipalities in McDonald v. City of Chicago in 2010. The McDonald plurality, per Justice Alito, expressly endorsed Justice Scalia’s definition of the right and his list of presumptively valid regulations in Heller. In sum, Heller and McDonald were seen as victories for champions of gun rights because they announced that the Second Amendment right was judicially enforceable, applicable to individuals in contexts wholly unrelated to militia service, and binding on all levels of government. But the two decisions left open more questions than they answered, and the adjudication of those open questions in the lower federal courts over the past few years has provided grounds for considerable optimism to citizens and politicians favoring gun regulation.