It’s been 10 years since the Court voted to hear a fundamental Second Amendment gun rights case. See Justice Thomas’ dissent from the denial of certiorari last year in Silvester v. Becerra:
If a lower court treated another right so cavalierly, I
have little doubt that this Court would intervene. But as
evidenced by our continued inaction in this area, the
Second Amendment is a disfavored right in this Court…
Nearly eight years ago, this Court declared that the
Second Amendment is not a “second-class right, subject to
an entirely different body of rules than the other Bill of
Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). By refusing to review decisions like the one
below, we undermine that declaration. Because I still
believe that the Second Amendment cannot be “singled out
for special—and specially unfavorable—treatment,” id., at
778–779 (majority opinion), I respectfully dissent from the
denial of certiorari.
One interpretation of the Court’s odd unwillingness during that nearly 10-year stretch is that Justice Kennedy believed that it would be politically unpopular among the howling classes of the #mediajackals and their lawprof allies to say “yes, the Second Amendment is a fundamental constitutional right, and we mean it.” So he voted against granting cert petitions. It takes 4 justices to vote to grant a cert petition.
Then Justice Kennedy stepped down. Justice Kavanaugh was confirmed in October 2018. Three months later the Court finally granted cert in a Second Amendment case, New York State Rifle & Pistol Assn v. City of New York.
The question is how the Chief Justice votes on October 1. He could pull a Justice Kennedy, try to duck the issue, let lower courts thumb their noses at the Court’s authority, and invent a reason to say the case is moot. That’s what the Democrats have requested. See “this Court…[may in] the exercise of its supervisory appellate power, make such disposition of the case as justice requires.” Walling v. Reuter (1943).
It’s been 10 years since the Court voted to hear a fundamental Second Amendment gun rights case. See Justice Thomas’ dissent from the denial of certiorari last year in Silvester v. Becerra:
One interpretation of the Court’s odd unwillingness during that nearly 10-year stretch is that Justice Kennedy believed that it would be politically unpopular among the howling classes of the #mediajackals and their lawprof allies to say “yes, the Second Amendment is a fundamental constitutional right, and we mean it.” So he voted against granting cert petitions. It takes 4 justices to vote to grant a cert petition.
Then Justice Kennedy stepped down. Justice Kavanaugh was confirmed in October 2018. Three months later the Court finally granted cert in a Second Amendment case, New York State Rifle & Pistol Assn v. City of New York.
The question is how the Chief Justice votes on October 1. He could pull a Justice Kennedy, try to duck the issue, let lower courts thumb their noses at the Court’s authority, and invent a reason to say the case is moot. That’s what the Democrats have requested. See “this Court…[may in] the exercise of its supervisory appellate power, make such disposition of the case as justice requires.” Walling v. Reuter (1943).
Next Tuesday will be interesting. And telling.