It’s high time for the court to begin making sense of Second Amendment law. That doesn’t mean making a sweeping judgment on “assault weapons,” concealed carry, or anything else, but equipping the lower courts with the tools they need to decide cases consistently. The high court said in Heller that laws implicating the Second Amendment must be subject to heightened judicial scrutiny—as opposed to the “rational basis” standard under which the government usually wins. But some circuits have disregarded even that simple directive. The Second Circuit has determined that “marginal, incremental, or even appreciable restraints on the right to keep and bear arms” necessitate no heightened scrutiny.
Some circuits have been asking for the high court’s intervention. The First and Fourth circuits have both indicated that they are waiting on the justices to decide whether the Second Amendment applies outside the home.
It’s understandable for the Supreme Court to be wary of disrupting longstanding state laws, but the court has refused opportunities to clarify the way these laws are to be interpreted even in the narrowest situations. Last year the court refused to hear Silvester v. Becerra, concerning the application of an arbitrary wait time to a firearm owner’s subsequent gun purchases, and Teixeira v. Alameda County, concerning the Second Amendment’s protection of the right to sell arms. Justice Clarence Thomas derided the court’s continued resistance to clarifying the Second Amendment in his dissent from the denial in Silvester—Justice Neil Gorsuch joined him on a similar dissent in 2017—pointing out that second‐class treatment of the Second Amendment has encouraged the lower courts to codify their policy preferences.
The latest opportunity for the court to step in is Mance v. Whitaker, in which the Fifth Circuit upheld a pre‐Heller federal law prohibiting licensed dealers from selling handguns across state lines. With Mance, the court could provide a meaningful framework for evaluating Second Amendment cases without directly affecting any state law.
Mance is the first Second Amendment appeal to arrive at the Supreme Court since Brett Kavanaugh joined the court. Justice Kavanaugh has a strong record of grappling with these issues; as a D.C. Circuit judge, he rejected an “interest balancing” approach that amounts to a policy analysis, instead focusing on the original meaning of the Second Amendment. To the extent that the court’s decade‐long reticence can be explained by justices being unsure of Anthony Kennedy’s swing vote, that excuse has expired—and only four votes are needed to hear a case. Even if Chief Justice John Roberts wants the court to stay out of this gun fight, his colleagues could force his hand.
Regardless of how the court ultimately decides these cases, it should start deciding them. With its silence, the court gives license to judges around the country to rule that constitutional rights mean different things in different places.