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Monday, April 15, 2013

Supreme Court Denies Review in Second Amendment Case

By: Sean Farrelly

As reported on SCOTUSblog, the Supreme Court of the United States has denied certiorari in the Second Amendment case Kachalsky v. Cacace.  The case is yet another refusal by the nation's highest court to consider the full reach of the Second Amendment right to keep and bear arms in the context of the Court's 2008 decision in District of Columbia v. Heller.  The Court in Heller, ruled that the District's handgun ban violated the Second Amendment.  However, the Court confined its ruling to the universe of handgun ownership within the home and refused to consider the issue in a broader context.  The Court did however state that the Second Amendment did not provide an unlimited right to keep and bear arms in all circumstances and specifically identified some situation where an individual may not have the right to possess a gun.

The Kachalsky case sought to challenge a limitation on on a citizen's right to a license to carry a concealed gun in public to those individuals who have "proper cause" to believe that they need a firearm for self-defense away from their home.  The Court did not provide any explanation as to why it denied review, thus leaving legal pundits to merely speculate as to why the Court would decline such an opportunity.  Some may speculate that the Justices feel this issue is best left for state governments to iron out.  While others will opine that the Court simply wants to stay out of the national gun control debate. 

As a Washington, DC illegal firearms attorney and a firm believer in the US Judicial System, I would like to give the benefit of the doubt to SCOTUS on this one.  I want to believe that they have some non-partisan, non-political and non-controversial reason for denying cert in this case.  I want to believe that they truly feel that they said all they had to say in Heller and McDonald v. City of Chicago (which basically reiterates the Court's previous ruling in Heller as applied to the state of Illinois).  I want to believe that the Court is trying to avoid opening up Pandora's box and having to review dozens of discrete issues related to gun possession.  As much as I want to believe all of those things, I just don't know if I can drink the red, white and blue Kool-Aid on this one.  

To state that Heller and McDonald have left open a few "holes" in the nation's Second Amendment jurisprudence would be an understatement.  Other than a firm understanding of the notion that all Americans can possess handguns within their own homes for self-defense, we are left as a nation wondering how much farther the Second Amendment really goes.  At a time where there seems to be one senseless act of violence after another (ironically, while writing this blog post I have been following the Boston Marathon bombing) one of the first steps towards controlling firearms is to completely understand the reach of the  Second Amendment.  

Regardless of your political affiliation or your opinion on gun control, all interested parties must agree that a more concrete understanding of the Second Amendment could go a long way in trying to make this nation a safer place.  The Supreme Court has let another golden opportunity slip away to corral the Second Amendment.  From both a legal and common sense perspective, I can't come up with any other legitimate reasons for the court to continue to punt on this issue, other than a desire to stay as far away from the gun control debate as possible, which is truly disappointing.

In recent weeks the Court has tackled one of the most contentious issues in recent civil rights debate, same sex marriage.  Regardless of how the Court rules on the issue, I applaud them for finally getting involved.  Hopefully the Court will follow suit and soon decide that they haven't said all that needs to be said about the Second Amendment.  


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