Guns Out, Free Speech in at U.S. Supreme Court

• Just 13 provisions account for most of modern Supreme Court constitutional rulings, data show

• Multiple factors, not just preference of justices, lead to unequal treatment of the Constitution

The right to bear arms has gotten surprisingly little attention at the U.S. Supreme Court for an issue that has long divided Americans culturally and politically compared to the huge volume of cases it has heard around free speech and equal protection.

The disparity, highlighted in a Bloomberg Law analysis of data on the court, is one example illustrating the justices’ wide discretion over their docket and how they don’t treat all parts of the Constitution equally.

Just 13 constitutional provisions account for nearly 75 percent of the court’s modern constitutional rulings, according to the analysis of the Washington University Law School Supreme Court Database. A few get zero attention.

There’s more to it than the justices’ views of the importance of a particular constitutional provision. From the availability of lawyers to the justices’ “tactical decisions,” there’s a lot going on when it comes to the high court’s unequal treatment of constitutional provisions, Eugene Volokh, a First Amendment scholar at UCLA School of Law, Los Angeles, told Bloomberg Law.

Guns Left Out

The court has issued only three rulings in its modern era based on the Second Amendment. And gun cases were missing from its docket over much of that period dating from the 1946-2016 terms, the span covered by the Washington Law database analyzed by Bloomberg Law.

That’s until until the landmark 2008 decision in District of Columbia v. Heller, which was followed two years later by McDonald v. Chicago. Heller found the Constitution protects an individual’s right to own a gun for “traditionally lawful purposes,” like self-defense at home. McDonald affirmed that Second Amendment rights conveyed to the states. The record “reflects a distressing trend” when compared to the number of cases heard by the court involving the First and Fourth amendments, Justice Clarence Thomas said when the court refused in June 2017 to hear a challenge to a California restriction on carrying concealed firearms in public.

There are approximately 500 rulings on both the First Amendment’s free expression protections and the 14th Amendment’s Equal Protection Clause out of nearly 4,500 constitutional decisions from the court in the post-war era, according to the breakdown of the Washington Law data.

The number of equal protection cases taken up by the top court, for instance, isn’t really surprising, Ilya Shapiro, of the Cato Institute, Washington, told Bloomberg Law in an email.

“The Fourteenth Amendment protects against state violations of unenumerated constitutional rights,” Shapiro said, also noting that states pass and enforce a lot of laws.

“So no wonder there’s a lot of litigation over those provisions,” he said.

Volokh agreed some constitutional provisions have outsized representation on the court’s docket because of their symbolic value. He pointed to the First Amendment’s speech protections as a classic example.

In 1989’s Texas v. Johnson, the court invalidated laws prohibiting the desecration of the American flag. Protecting the right to burn the flag probably isn’t a too terribly important legal question in and of itself, but the court likely took the case because of the symbolic value that free speech holds for our democracy, Volokh said.

Commerce, Election Law

Criminal protections in the Fourth and Fifth amendments are also among the court’s most litigated constitutional provisions, accounting for nearly a quarter of the Supreme Court’s rulings since the 1946 term.That’s likely due to the fact that there is a right to representation in criminal cases, Volokh said. It’s true that public defenders don’t have an obligation to litigate issues all the way to the U.S. Supreme Court, but the wide availability of public defense makes these issue prime for high court review, he said.

Commerce Clause cases are others that appear frequently with more than 200 rulings since the mid-20th century.

Other provisions get little attention, or none at all. The Supreme Court has never issued a ruling on the Third Amendment’s limitations on quartering soldiers in private homes.

Even seemingly more consequential provisions have gotten short shrift.

Article I’s Elections Clause allows state legislatures to set the “times, places and manner of holding” federal elections. It has only been the basis of three high court rulings in the past seven decades.

And there’s no Supreme Court case on the emoluments clause, which has come under scrutiny over whether the law banning federal officials from accepting payments or other benefits from overseas governments applies to President Donald Trump’s businesses.

Gaming the System

Justices also may prefer to allow consequential issues to percolate in the circuit courts before setting a nationwide rule that can’t be undone except by the Supreme Court, Volokh said.That’s especially true when a justice is in the minority on a particular issue.Even if a justice knows there are at least four votes to grant certiorari and hear a case, there may not be the five votes need to get to a particular result, Volokh said. A justice in that position may hold off on voting for certiorari in order to avoid what they view as a bad result, he said. In that way, the justices’ gaming of the system can throw off the numbers, Volokh said.

That could be what’s going on with the Second Amendment, he said.

Circuit courts have consistently taken a restrictive view of the right to bear arms. Therefore, if liberal justices don’t think they have the votes to avoid a “bad” ruling on guns, why not let the issue stay in the lower courts.

Up Next?

In the six months since Thomas aired his concerns, the justices have turned away nearly a dozen Second Amendment cases. Those included the constitutionality of state bans on semiautomatic rifles, whether the right to open carry falls within the Second Amendment’s protections, and which felons, if any, should be allowed to have firearms. But renewed interest in other kinds of cases could be on the horizon, Shapiro said.The court’s interest in digital technology could suggest an increase in Fourth Amendment cases, he said. For instance, the court recently heard oral arguments in Carpenter v. United States, whichasks whether warrants are required to get mobile phone location records from wireless carriers.

And to the extent that states want to push back on the Trump administration, that could cause an increase in “everything from the Supremacy Clause to the Commerce Clause to the Tenth Amendment, and more,” Shapiro said.