The sudden death of Antonin Scalia has triggered panic among many gun rights activists, who fear that the four remaining liberal justices on the Supreme Court will join with an Obama appointee to chip away at — or dismantle entirely — protections won in the landmark District of Columbia v. Heller case, which affirms the individual right to bear arms.
The perceived vulnerability of Heller helps explain why the National Rifle Association was so quick to denounce the nomination of Merrick Garland, the moderate judge tapped last week by President Barack Obama to fill the vacant seat.
But those dire warnings are almost certainly overblown, as evidenced in two under-the-radar orders from the court this week. In the cases, both considered on Monday, the sitting liberal justices showed little inclination to upend Heller — or, at the least, felt bound by the precedent that the decision established.
In a unanimous order, the justices said that the Massachusetts Supreme Judicial Court had employed faulty logic when it declared that stun guns are not covered by the Second Amendment. The Massachusetts court reached its conclusion based on the fact that stun guns were not in common use at the time the Bill of Rights was written. Heller, the Supreme Court said, clearly extended the right to own firearms invented after the Second Amendment was enacted. The Massachusetts court will now have to review the case again.
The order garnered a lot of attention, and for good reason. When the justices accepted the case on Monday, it was the first Second Amendment dispute the Supreme Court had taken in six years. Over that period, the left-leaning contingency on the bench was solidified with the additions of Sonia Sotomayor and Elena Kagan. The case represented a chance for the liberal justices to articulate new ways to think about the right to bear arms, and to potentially even overturn pieces of Scalia’s seminal decision. But there was no such upheaval. “I think that shows the four liberal justices are not hell-bent on overturning Heller,” says Adam Winkler, a constitutional law scholar.
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Also on Monday, the Supreme Court declined to hear a lawsuit brought by a Colorado resident against the United States Postal Service over a regulation that bans guns at post offices and their adjacent parking lots. By refusing to take up the case, the Supreme Court lets stand a lower court ruling from the U.S. 10th Circuit Court of Appeals, which held the post office gun ban to be constitutional. In its decision, the 10th Circuit drew on the exceptions carved out by the court in Heller that give authorities leeway in banning guns from some “sensitive places” such as schools and government buildings.
Refusing to hear a case is not the same as issuing a decision, but it is a strong signal that the court believes that the legal issue in question is clear and does not require intervention. It is also a reminder, Winkler says, that Scalia’s Heller opinion allows sizable carve-outs that gun control groups are sure to continue to try to exploit. “Most forms of gun control can survive it.”
Correction: An earlier version of this story incorrectly identified the date when the Supreme Court accepted Caetano v. Massachusetts. The court took up the case on March 21, 2016.
[Photo: Flickr user Stephen Nasker]