While it may come as a shock to many of our viewers, I am firmly of the position that the U.S. Supreme Court properly denied certiorari in Peruta v. California, given the significant rumors of Justice Kennedy’s impending retirement this summer – the result of which will trigger the biggest battle over the confirmation of a new justice that our Country has ever seen.
But what does that have to do with Peruta?
Well, if you remember, both D.C. v. Heller and McDonald v. Chicago were 5-4 votes, which included Justice Kennedy in the majority; however, his exact position on the Second Amendment is not known, as he joined the majority opinion in U.S. v. Castleman, which, as Justice Scalia wrote, results in everything constituting domestic violence. Accordingly, even absent his retirement, he may not be a vote that we can count on in support of the Second Amendment.
Furthermore, since Heller and McDonald, we unfortunately lost the legal giant Justice Scalia. While Justice Gorsuch has now taken former Justice Scalia’s place on the Court, assuming he votes consistent with former Justice Scalia’s opinion of the Second Amendment (which seems extremely likely given the Dissent to the Denial of Certiorari to Peruta for which he joined), in the absence of Justice Kennedy, the 9th Circuit’s decision, upholding the draconian law, would likely be affirmed, since a 4-4 vote results in affirmation of the lower court’s ruling. While Tom Goldstein of SCOTUSBlog has found precedent in such situations for re-argument once another Justice is confirmed, he has likewise found identical precedent where re-argument was not provided. Hence, we cannot count on re-argument being granted in a 4-4 tie situation.
While a tie vote affirmation is not precedential on lower courts, it would likely empower even more lower courts to ignore the dictates of the Second Amendment and Heller, McDonald, and Massachusetts v. Caetano, since the lower courts have seemingly thumbed their nose at the Court’s binding precedent. Specifically, in Heller, the Court declared that the definition of “bear arms” was to
wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose of . . . being armed and ready for offensive or defensive action in a case of conflict with another person.
Yet, lower courts have consistently upheld bans on carrying firearms in one’s pocket and permitted states to require an individual to obtain a license to carry a firearm concealed on his/her person.
Furthermore, in both Heller and McDonald the Court declared that the Second Amendment should not be analyzed in an interest-balancing approach. Specifically, in Heller the Court declared
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.
Likewise, in McDonald, the Court declared that the Heller Court “specifically rejected” “an interest-balancing test”. Yet, almost every federal court that has analyzed the Second Amendment has analyzed it under an interest balancing approach, generally only applying intermediate scrutiny.
For these reasons, until Justice Kennedy retires and is replaced by a jurist that recognizes the Second Amendment is an inalienable right, it is best for SCOTUS to continue denying certiorari in cases involving the Second Amendment.