The Supreme Court has denied certiorari in around one hundred Second Amendment cases since deciding District of Columbia v. Heller in 2008. Since then, the Justices have issued only one bona fide firearms decision, which brought state and local laws within the Second Amendment’s scope. At the same time, the right to keep and bear arms continues to loom in thousands of lawsuits either recently decided or docketed in the lower courts. The facts of these cases stray from Heller’s now-blackletter rule that handguns may be kept and used in the home for self-defense. And so, the lack of applicable guidance places lawmakers and judges in a predicament.
Unsure of how to proceed, legislatures pass firearms laws which are both over- and under-inclusive. These are immediately challenged in court, often before enactment. Presiding judges from all twelve relevant circuit courts express their confusion on how to proceed in written opinions. Some statements are not-so-subtle prods at the Justices to show more courage and accept the next big gun case. The irony is that the Roberts Court typically acts courageously. Over the past five years, the Justices have decided many tough cases revolving around six of the ten vaguely written Bill of Rights guarantees and plenty more involving the equally ambiguous Fourteenth Amendment. Of the four neglected provisions—the Second, Third, Ninth, and Tenth Amendments—the latter three are rarely invoked in a petition for certiorari. The Second Amendment, on the only hand, often plays a starring role.
Therefore, the Court should show similar courage and further elaborate on Heller’s meaning. This Article formulates a framework which demonstrates that the Court should expeditiously grant certiorari when four factors coalesce: (1) lawmakers are hamstrung in deciphering constitutional boundaries; (2) echoes of confusion ripple through lower courts lacking definitive guidance; (3) an appropriate case places the issue squarely on the table; and (4) the Supreme Court is the best/only authoritative referee able to settle the matter.
Most Second Amendment cases easily surmount this high hurdle. The Article identifies two areas in greatest need of clarity: prohibitions or restrictions on assault weapons/large capacity magazines and public carry. Each continue to produce cases that are ripe for the Court’s consideration. When the newly configured Roberts Court takes its next big gun case, it should come from these areas of unsettled law. In the end, it is past time for the Supreme Court to fulfill its promise in Heller to further elaborate on the Second Amendment’s individual right to keep and bear arms.
The Next Big Gun Case: The Resurrection of the Second Amendment at the New Roberts Court,
102 Marq. L. Rev. 309
Available at: https://scholarship.law.marquette.edu/mulr/vol102/iss2/3