Outside the Beltway

SCOTUS Declines To Review Case Challenging New York, Connecticut Gun Control Laws

Continuing a pattern that began six years ago, the Supreme Court has again declined to hear an appeal in a case involving a challenge to state gun control laws.

Doug Mataconis · Monday, June 20, 2016 · 9 comments

In a pattern that has continued now for more than half a decade, the Supreme Court declined to review a case dealing with gun control laws thus letting stand laws in Connecticut and New York that passed in the immediate aftermath of the Sandy Hook shootings in December 2012 that included a ban on the type of weapon used in the Orlando nightclub attack among other recent mass shooting incidents:

WASHINGTON — The Supreme Court on Monday refused to hear a Second Amendment challenge to a Connecticut law banning many semiautomatic rifles. The law, enacted in 2013 in the wake of the mass shooting at Sandy Hook Elementary School in Newtown, Conn., made it a crime to sell or possess the firearms, which critics call assault weapons.

The decision not to hear the case, not long after the mass shooting in Orlando, Fla., does not set a Supreme Court precedent. But it is part of a trend in which the justices have given at least tacit approval to broad gun-control laws in states and localities that choose to enact them.

The case, Shew v. Malloy, No. 15-1030, was brought by four individuals, a business and two advocacy groups. They said the ban was irrational, ineffective and unconstitutional.

“Connecticut dubs a semiautomatic firearm” with one of several common features “an ‘assault weapon,’ but that is nothing more than an argument advanced by a political slogan in the guise of a definition,” they told the Supreme Court in their petition seeking review.

Last October, the United States Court of Appeals for the Second Circuit, in New York, upheld the ban almost entirely. It acknowledged that the affected weapons were in common use and assumed their possession was protected by the Second Amendment. But the appeals court ruled that the Connecticut law passed constitutional muster.

The law was “specifically targeted to prevent mass shootings like that in Newtown, in which the shooter used a semiautomatic assault weapon,” Judge José A. Cabranes wrote for the court.

“Plaintiffs complain that mass shootings are ‘particularly rare events’ and thus, even if successful, the legislation will have a ‘minimal impact’ on most violent crime.

“That may be so,” Judge Cabranes continued. “But gun‐control legislation ‘need not strike at all evils at the same time’ to be constitutional.”

The case challenging the Connecticut law was combined with another case challenging a similar law passed in New York State around the same time, and the appeal involved the parties in both cases, as did the opinion that was issued back in October 2015.

This latest denial continues a pattern that stretches back six years now. After what in reality was a very limited ruling in District Columbia v. Heller in 2008, the last true Second Amendment case the Supreme Court has heard was McDonald v. Chicago, which is essentially the “state” version of Heller in that the fundamental question in that case was whether the individual right that Heller recognized applied through to the states through the 14th Amendment. This is the doctrine of incorporation, which at this point is nearly a century old thanks to a series of cases that one by one has applied the virtually all of the provisions of the various Amendments of the Bill of Rights to the states via the Due Process Clause of the Fourteenth Amendment. In McDonald, of course, the Court held that the right recognized in Heller to have a weapon in the home for the purpose of self-defense was in fact incorporated against the states. As it had in Heller, though, the McDonald Court made clear that the opinion should not be read as expressing any opinion on the constitutionality of any other gun control provision, and that there very well may be regulations and restrictions on the right to keep and bear arms that would be acceptable under the Second Amendment. That was six years ago, and as if to emphasize that decision the Justices have spent the last six years seemingly making that point clear by declining review in a number of cases where a regulation or restriction on Second Amendment rights was upheld by a lower court.

In 2013, for example, the Court declined to hear an appeal in a case involving New York’s highly restrictive law regarding who may carry a weapon in public. This was in the immediate aftermath of the Sandy Hook shooting at at time when the laws at issue in the Connecticut and New York cases at issue were still making their way through their respective state legislatures. As I noted at the time, the Court seemed to be saying that it was content to leave the matter to the states and the Circuit Courts for the time being. It may also have been the case that the Court determined that the case at hand was not appropriate for review for reasons not necessarily related to the gun issue. In any case, in 2014 the Court again declined to hear a high profile gun case when it rejected an appeal challenging New Jersey’s restrictive laws on who may carry a gun in public, once again without comment or explanation. Later that same year, the Court declined to hear a challenge to a San Francisco law requiring that handguns kept in the home either have a trigger lock or be kept locked up when not in use, this time provoking a dissent from the denial of certiorari arguing that the Court is surreptitiously narrowing the Second Amendment by simply declining to review cases. Finally, in December of last year, the Court declined to hear the appeal of a lower Court decision upholding a Chicago suburbs ban on “assault weapons,” once again provoking a dissent from Justices Scalia and Thomas. Indeed, in the last six years the Supreme Court has issued an opinion in only one case dealing with guns, a case in which it held that lying on the form used to initiate a background check was indeed punishable under existing law. And now, you can add the challenges to the New York and Connecticut laws to the growing list of cases involving the Second Amendment rights in which the Justices have declined to get involved.

Since the Court generally does not issue any kind of opinion explaining why it didn’t accept a case for review, it’s hard to make any kind of judgment for what’s going on here, but it’s hard not to reach the unmistakable conclusion that the Justices are choosing to avoid challenges to the state and municipal laws that have been at issue in these cases for one reason or another. The best conclusion seems to be that they have consciously chosen to leave this issue to the states and to the Circuit Courts of Appeal, which so far have largely upheld most of the restrictions brought before them, with the exception of a handful of cases out of the Seventh and Ninth Circuits regarding concealed carry laws. With specific regard to laws regarding “assault weapons,” there are presently bans on these types of weapons on the books in seven states and several cities. None of them have been struck down in what would amount to a final ruling from a State Supreme Court or one of the Circuit Courts of Appeal. If that were to happen, there would be an obvious Circuit split on this issue at least, thus increasing the pressure on the Justices to accept one of these cases for review. Until it does, though, they seem content with dealing with the cases in this manner. In itself, that should be a signal regarding what is likely to happen on the high court if a ban on “assault weapons” were to make it there, and it’s an outcome that is unlikely to make proponents of gun rights happy.