Supreme Court Quietly Inters Second Amendment

by JASmius



It wouldn't be fair to say that the "Supreme Court rules in favor of hollow-point ammo ban!!!!!," as Eric Odom's headline on this story bombastically blares.  It would be more accurate to say that in refusing to hear an NRA certiorari writ on two San Francisco gun ordinances, the SCOTUS declined to rule in favor of the Second Amendment:

The Supreme Court has turned down another National Rifle Association-led appeal aimed at loosening gun restrictions and instead left in place two San Francisco gun laws.

The court on Monday let stand court rulings in favor of a city measure that requires handgun owners to secure weapons in their homes by storing them in a locker, keeping them on their bodies or applying trigger locks. A second ordinance bans the sale of ammunition that expands on impact, has “no sporting purpose” and is commonly referred to as hollow-point bullets.

Justices Antonin Scalia and Clarence Thomas said they would have heard the appeal from the NRA and San Francisco gun owners.

Gun rights supporters have been frustrated by the court’s unwillingness to expand on a seminal gun rights ruling from 2008.

Part of the problem with this episode is the same "judicial review" mentality that is almost universally accepted across the politicoideological spectrum.  Article III of the Constitution, once again, does not empower the SCOTUS to be the sole arbiter of constitutionality.  And even if it did, that would create the exact same incentive whereby everybody pretty much does whatever they hell they want, rule of law and Constitution be damned, and then cries foul when Olympus, to employ a football analogy, calls back your fifty-yard pass play with a holding penalty.  Such rulings being a function not of the Constitution or laws passed under its auspices, but predominantly, shall we say, "policy-driven".

It really is a case of valid law versus invalid law.  And as the Founding Fathers fervently believed, the latter imposes no legal obligation of civil obedience upon the citizenry.  Unfortunately, the economic costs that can be imposed in legal fees alone creates an anti-nullification deterrent that would preclude mass civil disobedience even if the "judicial review" mentality could be purged.

This, of course, is tyranny.  Quiet tyranny, but tyranny nonetheless.

There's no certain way to know or, well, "judge" how the Supremes would have ruled on these two 'Frisco gun laws.  Certainly the Roberts court has issued pro-Second Amendment rulings in recent times.  But seeing as how SCOTUS rules require a minimum of four justices to hear a case, and only two (Scalia and Thomas) voted in the affirmative, one can only conclude that Roberts and Alito, at a minimum, weren't sold on the NRA's case and opted not to issue a "landmark" decision that would undermine the overall pro-Second Amendment narrative they've built, but instead just quietly leave these grayer areas intact.

And they are, in a low-information-voter sense, gray areas.  Heller and McDonald both dealt with gun ownership, whereas these two San Francisco ordinances are derivative (safety measures, a particular type of ammunition).  Being a Chief Justice who is not immune to political pressure (as when he waved his magic jurisprudential wand and turned the ObamaCare Individual Mandate fine into a "tax" in the heat of Barack Obama's 2012 re-election campaign), I would surmise that John Roberts didn't want to wade into the muck of that gun policy no-man's land.  Yes, if he were solely following the Constitution, he would stand on the "shall not" in "the right of the people to keep and bear arms SHALL NOT be infringed".  But, to cut Roberts a break, who knows where Alito and Kennedy stood on this judgment call?  If you're the Chief Justice, and you wish to rule constitutionally on a case appealed to Olympus, and it looks like the votes aren't there to produce that ruling, do you take the case anyway, make a spectacle of blowing up the Second Amendment, or just let unconstitutional local sleeping dogs lie?

As Odom points out, it still sets a judicial precedent, a doctrine which, cut off from its constitutional moorings is as reckless as judicial review and an obstacle to reconstitutionalization.  But in this, well, "case," it may well have been the least of all evils.