The debate about how to deal with
guns in our country rages on in the wake of the shooting deaths of 14
students and three adults at a Florida high school Feb. 14.
We are again confronting the
challenge of remaining faithful to the unalienable right to life
articulated in the Declaration of Independence – a challenge that the
Constitution demands we protect from two angles.
By seeking to “insure domestic tranquility,” the
government has an obligation to protect us from violence. But by
acknowledging “the right of the people to keep and bear arms” it also
recognizes the need for individuals to protect themselves by means of
self-defense.
We must have a conversation about how to navigate the
tension between these two realities. It should involve everyone in our
society and within our government. President Trump is talking about it.
Congress is talking about it. The media, educators and citizens are
talking about it.
But one potential participant remains conspicuously
silent: the United States Supreme Court. On Feb. 20, the Supreme Court
refused to hear the 9
th U.S. Circuit Court of Appeals case Silvester v. Becerra.
That case concerned a California law requiring a 10-day waiting period before purchasing a firearm.
The challenge to the law said it should not apply to
people who previously had gone through the background check process and
now sought to buy an additional gun. The 9
th Circuit Court upheld the 10-day waiting period.
Regardless of this case’s particular merits, the high
court’s denial represents a larger pattern. For nearly a decade, the
court has refused to rule on the constitutionality of gun regulations in
a systematic fashion.
The justices’ reticence is both strange and
problematic. It is strange in light of prior decisions. A decade ago, in
the 2008 case of D.C. v. Heller,
the
Supreme Court interpreted the Second Amendment to the Constitution for
the first time as protecting the right of an individual to own a gun.
But far from making this right absolute, the court declared that limits
existed to gun ownership.
What exactly were those limits? The court didn’t really say.
Beyond affirming that “longstanding prohibitions” could
continue, Justice Antonin Scalia refused to give details when the
Heller decision was announced. No need to do so, he said, “since this
case represents this Court’s first in-depth examination of the Second
Amendment, one should not expect it to clarify the entire field … there
will be time enough to expound upon the historical justifications for
the exceptions we have mentioned if and when those exceptions come
before us.”
It seemed that the court, having established the
baseline of an individual right, expected a series of future cases to
draw the lines for how to balance gun safety and gun rights. The court
ruled in 2010 that the Second Amendment applied to the states
in McDonald v. City of Chicago
.
However, the decision in the McDonald case didn’t break
much new ground on the content of the right itself. Instead, it merely
kicked the can of further definition down the road. After that case,
when given numerous options to further delineate the Second Amendment,
the court has refused – again and again.
The Supreme Court’s failure to define the scope of gun
rights is problematic because it leaves too much unsettled. The Heller
and McDonald decisions opened up myriad questions about gun rights and
their regulation without settling on a standard by which to judge gun
laws.
This means that, absent further precedent, lower courts
possess little guidance in how to rule on competing claims, which in
turn has given rise to confusion.
As Justice Clarence Thomas pointed out when objecting
to the latest court refusal to hear the Silvester case, there is a great
disparity in the standards exercised by lower courts in gun cases.
While some judges seek to impose a more stringent standard on gun laws,
others – like many on the 9
th Circuit Court – adopt a “deferential analysis” that accepts as valid nearly any regulation.
The Supreme Court once argued that
“liberty finds no refuge in a jurisprudence of doubt.” That remains
true for gun owners, who are subject to the accident of whatever lower
court judge’s jurisdiction they happen to live in.
It is also true for legislators, who are left without
guidelines to follow when crafting legislation. But it is especially
true for the victims of gun violence.
Liberty does not find a refuge in a jurisprudence of
doubt, and neither does life. The Supreme Court cannot and should not
try to settle every detail of gun policy. But it should begin to fulfill
the promise made in the Heller case
.
The nation’s highest court should seek to further
describe what it believes the Second Amendment protects regarding gun
ownership and what the amendment allows for gun regulations. The high
court should also police lower courts to hold them accountable to those
standards.
In so doing, the Supreme Court can make its own needed
contribution to the present conversation. It can bring the Constitution
to bear in its own way in the gun debate.
Above all, the Supreme Court can play a part in
furthering the right that proponents of gun regulation and of gun
protection both seek – a right that has been so desecrated by our
seemingly endless school shootings: the unalienable right to life.