John Roberts May Not Be the Ally Gun-Rights Advocates Hoped For

The Court’s decision not to hear several Second Amendment cases may be a sign that the chief justice is not a solid vote against gun control.

Justices John Roberts, Elena Kagan, Neil Gorsuch and Brett Kavanaugh
Leah Millis / Reuters

Easily overlooked in all the attention paid (rightly) to the historic Supreme Court decision extending antidiscrimination protections to LGBTQ people was a quiet announcement by the justices that they would not hear any of the 10 Second Amendment cases they had been considering. By agreeing not to decide these cases, the justices sent a clear signal to the gun-rights movement: Stop looking to the Supreme Court to strike down gun-control laws.

The 10 cases raised fundamentally important and largely unanswered questions about the scope of the Second Amendment. In 2008’s District of Columbia v. Heller, the Supreme Court held that the Second Amendment guaranteed an individual right to have handguns in the home for personal protection. But the decision did not clarify whether a person has a right to carry a firearm on the streets, what kind of permitting cities and states can require for public carry, or whether assault rifles are protected arms.

In the years since Heller, most of these questions have arisen in the lower courts, but judges have by and large upheld most forms of gun control. Gun-rights advocates, including the National Rifle Association, have brought case after case challenging gun-control laws to the Supreme Court, hoping that the justices would step in and provide more protection to gun owners. Before Justice Anthony Kennedy’s resignation in 2018, the Court had consistently refused to take another big Second Amendment case. When Brett Kavanaugh joined the Court, gun advocates seemed likely to finally get their way: The Court took a New York case that looked to be the vehicle for expanding the Second Amendment.

But in April, the justices decided that case was moot, as New York had already repealed the challenged gun law. Gun advocates and Court watchers thought that one of these 10 newer cases would surely subsequently be taken up. The justices, however, had other ideas.

Their decision wasn’t for lack of a good, promising case. All 10 cases presented the justices with the major open questions on the Second Amendment’s scope, and featured leading and respected Supreme Court advocates. The Court even rejected cases on the right to carry outside the home, despite the lower courts’ split on that issue. The Supreme Court almost always takes such cases in order to resolve those splits. Not this time.

So what explains the Court’s refusal to hear another Second Amendment case? Only the justices can be certain, but one thing we do know is that the Court’s decision to take a case requires the agreement of only four justices. And we also know that four justices (Neil Gorsuch, Clarence Thomas, Samuel Alito, and Brett Kavanaugh) are all on record saying that the Court should take a Second Amendment case and address the very unanswered questions posed by the cases it turned away today. Those justices could have forced the Court to take one of them, but they didn’t—and one suspects that’s because of John Roberts.

If the four conservatives thought Roberts would side with them, they would certainly have accepted one of the 10 cases. They didn’t, which could well mean that they were not confident of Roberts’s support. Surely they have a much better sense than Court watchers do about how Roberts views the Second Amendment, given their internal discussions regarding the New York case and the many petitions over the years in cases on the right to bear arms.

One conclusion to draw, then, from Monday’s denial to hear those cases is that Chief Justice Roberts may not be so in favor of broadly expanding the scope of the Second Amendment. If so, this is a major blow to the NRA and gun-rights advocates, who have counted on Roberts—who sided with the majority in Heller—to be a solid vote against gun control. Without his vote, they don’t have the five justices they need to scale back America’s gun laws.

Of course, the four liberal justices could also have forced the Court to hear a gun-control case, if they were certain Roberts would vote with them. But the lower courts are already upholding most gun laws, so the liberal justices are happy to leave things as they are.

The Court’s conservatives, along with gun-rights advocates, have complained about the Second Amendment being treated as a “second-class right.” They are the ones looking to change the law. The Supreme Court’s refusal to take any of these major Second Amendment cases is a strong signal that the Supreme Court—and Chief Justice Roberts in particular—isn’t about to do that anytime soon.