The Supreme Court on Tuesday announced no action on a new case testing the meaning of the Second Amendment — an issue the Court has not considered in 68 years. The Orders List contained no mention of either the District of Columbia’s appeal (07-290) or a cross-petition by challengers to the city’s flat ban on private possession of handguns (07-335). The next date for possible action on these cases is likely to be Nov. 26, following a pre-Thanksgiving Conference of the Justices set for Tuesday, Nov. 20.Remember: it takes four justices to grant cert. It is very, very difficult for me to believe that only three justices consider this important enough of a question of law for the Court to consider. So it may be the question above (someone is writing a dissent from the denial and needs more time). Or it may be that there are six justices who are afraid to confront this question.
The Court, of course, does not explain inaction. But among the possible reasons for delaying the case are these: one or more Justices simply asked for more time to consider the two cases; the Court may be rewriting the question or questions it will be willing to review — especially in view of the disagreement between the two sides on what should be at issue; the Court may have voted initially to deny review of one or both cases and one or more Justices are writing a dissent from the denial. The appeal in 07-290 (District of Columbia v. Heller) raises the key issue about the Second Amendment’s meaning — that is, whether it guarantees an individual right to have a handgun for private use, at least in one’s home — and the appeal in 07-335 (Parker v. District of Columbia) poses a question about who may bring lawsuits to challenge laws before they are actively enforced. Together, the cases thus present a somewhat complex mix for the Court, and it perhaps was not much of a surprise that no order issued on Tuesday. At no point is there likely to be an answer as to what happened to bring about the delay. Both cases are expected to be re-listed for the Nov. 20 Conference.
Let's do the math. There are nine justices on the Court. If a majority are in favor of overturning the Court of Appeals decision, then they have the votes to grant cert plus one. If a majority are in favor of upholding the Court of Appeals decision, then they have the votes to grant cert plus one. So why wouldn't they grant cert?
Perhaps there is a majority in favor of overturning the Court of Appeals, and ruling that the Second Amendment doesn't protect an individual right, but they realize that doing so would launch a political firestorm in the U.S., and pretty well destroy any chance of the Democrats taking control of the White House next year. If so, they are prepared to destroy the existing ban on bringing handguns into the District, in order to put a Democrat in the White House next year.
This really confuses me.