On Second Amendment, Supreme Court Abdicates Its Duty to Say What the Law Is


With today’s decision to deny all pending petitions raising Second Amendment issues—Cato had filed in three—the Supreme Court has abdicated its responsibility to say what the law is in this important and contentious area.

For the last decade, lower courts have engaged in judicial disobedience, aiding and abetting many states’ hostility to the right to armed self‐​defense. They’ve also been all over the place in setting out how to evaluate such challenges. With today’s cowardly decision not to hold those judges’ and public officials’ feet to the constitutional fire, the justices are okaying that massive resistance and refusing to settle any of the legal confusion.

This is especially disappointing because in New York State Rifle & Pistol Association v. NYC a few months ago, four justices (Thomas, Alito, Gorsuch, Kavanaugh) signaled their willingness to finally start defining the scope of these rights. But apparently those four were so unsure of whether they had a fifth vote and ultimately decided not to roll the dice.

In other words, for nearly a decade after McDonald v. City of Chicago (2010) extended the individual right to keep and bear arms to the states, the uncertainty over Justice Kennedy’s vote prevented the Court from taking up a Second Amendment case—and now that pattern has been extended to Chief Justice Roberts’s tenure in the “swing” seat.

For shame.

Used with permission. Cato Institute / CC BY-NC-SA 4.0

Ilya Shapiro, is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. Before joining Cato, he was a special assistant/adviser to the Multi-National Force in Iraq on rule-of-law issues. Shapiro is the co-author of Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution (2014), has testified before Congress and state legislatures and, as coordinator of Cato’s amicus brief program, filed more than 200 “friend of the court” briefs in the Supreme Court. He lectures regularly on behalf of the Federalist Society, is a member of the Legal Studies Institute’s board of visitors at The Fund for American Studies, was an inaugural Washington Fellow at the National Review Institute and a Lincoln Fellow at the Claremont Institute, and has been an adjunct professor at the George Washington University Law School. In 2015 National Law Journal named him to its list of 40 “rising stars” in the legal community.