Presented with an opportunity to expand gun rights, the U.S. Supreme Court took a powder Monday. It refused to hear a challenge to gun regulation in New Jersey, repeating a pattern of declining every such opportunity since it decided major gun-rights cases in 2008 and 2010.
It wasn't supposed to go this way - not in the world according to gun-rights advocates. The New Jersey case arose from a decision by an appeals court panel, which had upheld the state's ban on permits for carrying handguns without authorities discerning a "justifiable need." The state defines that as an "urgent necessity for self-protection." In other words, you can't carry a gun in public just because you happen to like carrying a gun in public, and you can't carry a gun because you're generally anxious and afraid. You need a specific reason.
This doesn't sit well in gun world. As the National Rifle Association pointed out in its amicus brief, the Second Amendment guarantees the right to "keep and bear" arms. Under New Jersey law, it's very difficult to exercise the latter half of the right. By refusing to accept the case, the court left hanging to what degree gun possession outside the home can be regulated.
The court denied cert - support from four justices is required to take up a case - without explanation, so it's difficult to know what the justices are thinking. When the court decided District of Columbia v. Heller in 2008, the 5-4 majority opinion by Justice Antonin Scalia broke dramatic new ground, declaring for the first time an individual right to arms (as opposed to a right to bear arms in a militia).
That seemed to set the law on course to a laissez faire embrace of murder and mayhem in the mode of Florida, Georgia and other states that have elevated maximum gun rights over public safety. Instead, gun-rights plaintiffs keep losing in the courts even as they prevail in one red-state legislature after another.
The Heller decision, the crowning achievement of the gun-rights movement, is turning out to be a big impediment to gun nirvana. The ruling states that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions on the commercial sale of arms."
An awful lot of regulation comes in over that gaping transom. The result? As Scalia himself wrote in Heller: "Like most rights, the right secured by the Second Amendment is not unlimited."
The court will have many more opportunities to set gun rights free, including an appeals court ruling in California deciding that San Diego had overstepped its powers by requiring "good cause" to obtain a concealed-weapons permit.
It seems unlikely that the judicial losing streak of gun-rights activists will continue permanently. Sooner or later they'll get a break. However, their legislative winning streak may be more problematic. In their rush to embrace extreme gun rights, state legislatures have been enacting laws - guns in bars! - that will result in deaths by gunshot. (Yes, I'm stating that as fact. I've been to bars.) And by further empowering gun nuts, they are all but certain to scare sensible people out of the gun-rights camp.
Parents in Wichita are objecting to local senior citizens' use of a new indoor track at a public school in part because they are afraid someone will bring in a gun and start shooting kids. Georgia parents watching their children's baseball game were alarmed by the perfectly legal appearance of an extreme gun-rights advocate in the parking lot. "See my gun? Look, I got a gun and there's nothing you can do about it," the man said, according to a witness. The man, of course, was right. Georgia's law encourages precisely such acts of intimidation and recklessness.
Francis Wilkinson writes for Bloomberg View.