We expected the Court would once again relist all ten pending 2A cases, denying cert on each at them at the Court’s last conference for the Term. But the Court made its final determination on June 11, 2020.
No surprise to us as to the denial of cert, but the final determination came earlier than we expected. Even so, it means something more than, and something other than, most Americans realize. The cryptic, “something other than,” pertains to Roberts.
So, then, what went wrong? Actually, for Chief Justice Roberts and the liberal wing of the High Court, nothing went wrong. Everything went according to plan.
Some proponents of 2A, including some readers of Ammoland, believe the NYC case mootness issue was properly decided. It wasn’t.
But the mootness issue is and was nothing more than a red herring. In fact, Chief Justice Roberts and the liberal wing anticipated that the City would amend its Rules and that the State would amend its laws to avoid a consideration of and a decision on the merits, which would have necessitated consideration of Heller. And that possibility was not be countenanced. It was something that the liberal wing of the Court and Chief Justice Roberts, as well as the City of New York and New York Governor Andrew Cuomo, intended to avoid at all costs.
Cuomo and the City of New York did what was expected of them. And Chief Justice Roberts and the liberal wing of the Court did what both they, and both the City and Cuomo, wanted: no review of New York City gun laws.
The 2A Heller issue would not be heard.
But, why did Kavanaugh side with Roberts and the liberal wing, and why did he write a puzzling and limp concurring opinion, basically telling Americans, albeit in an oblique manner, that he really does support the Second Amendment, and that the Court will have another chance to hear another case and, so, Americans should not worry?
Kavanaugh is, at best, a weak supporter of the Second Amendment and of the Bill of Rights of generally but he does appear to adhere to Supreme Court precedent. His learned and reasoned dissent in Heller II is a testament to that.
Kavanaugh likely did not wish to side with the liberal wing. We believe Chief Justice Roberts cajoled Kavanaugh into doing so. Why? It couldn’t be because a sixth vote was needed. It wasn’t. Robert’s fifth vote gave the liberal wing the majority it needed to find the case moot.
But we are dealing with appearances here: smoke and mirrors. We believe that Roberts may have tried to get another Trump nominee, Neil Gorsuch, to join the majority, too; but Gorsuch would not do so.
A 7-2 majority decision would give Roberts even more cover, and cover is what Roberts wants. It is what he needs.
Clearly Roberts did not wish to appear alone, siding with the liberal wing of a Court, especially on a 2A matter. So, Kavanaugh reluctantly agreed to give cover Roberts cover, but insisted on drafting a concurring, to suggest: one that he does support 2A, if only half-heartedly; and, two that the Court “should” take up another 2A case soon, even as he knew full well that it wouldn’t—hence his use of the weak obligation word, ‘should,’ in the concurring, rather than the strong obligation word, ‘will.’
But, if Roberts holds such antipathy toward the Second Amendment, why did he sign on with the majority in Heller?
Roberts did, after all, side with the conservative wing in Heller and McDonald.
The Press tells us Associate Justice Anthony Kennedy was the sole hold-out in Heller for the critical fifth vote needed and that the late eminent Associate Justice Antonin Scalia, who penned the Heller majority opinion, had to include language in that opinion to soften the rulings.
The Press paints a picture of Justice Anthony Kennedy as the moderate swing vote on the Court. In doing so, the Press is engaging in just another deception.
The truth of the matter is that Roberts, no less than Kennedy, and, conceivably, more so, compelled Scalia to add language to the opinion that, despite the rulings, provided Anti-Second Amendment proponents with a safe harbor; allowing Anti-Second Amendment governments to continue to do what they have been doing all along: to whittle away at the import of the Second Amendment.
So, then, what does that say about Chief Justice Roberts?
Roberts has, for a time, come across as a defender of our Bill of Rights. It was all ruse. He isn’t a defender of our Bill of Rights nor, more specifically, is he a defender of our Second Amendment; and he never has been.
Even as the Radical Left tabloid, The New York Times, refers to Roberts as a member of the conservative wing of the Court, he is no such thing, and the Times knows it. Nor is he to be perceived as a judicial, “moderate”—the proverbial swing vote, carrying the mantle of retired Associate Justice Anthony Kennedy.
Roberts has no more desire to see our Second Amendment strengthened than do the Associate Justices of the liberal wing of the High Court, predominately, long “tenants” on the Court, Ruth Bader Ginsburg and Stephen Breyer.
Why, then, did Roberts and Kennedy agree to join the majority in Heller? We think that this says something about the force and indomitability of Scalia’s personality and intellect: something lost when Justice Scalia met with a deeply tragic and clearly puzzling death. And Roberts has no intention ever again to lock horns with another Justice who has the indomitability of spirit of Scalia.
It is now Justice Roberts’ Court in fact not merely in name. It is no longer Justice Scalia’s Court.
Recall that George Bush nominated John Roberts to serve on the U.S. Supreme Court as the Chief Justice, not merely as an Associate Justice. This was no accident.
As Chief Justice of the High Court, John Roberts sets the tone of the Court and wields considerable leverage over the Court, as we deduce from Robert’s obvious success in cajoling Kavanaugh to side with him, to join the liberal wing on the mootness issue.
The High Court is said to grant writs in four circumstances, as set forth in detail in the Peter Blair weblog:
- Conflict of law: The Supreme Court may elect to step in and make a ruling when different courts reach different conclusions about federal or constitutional law. With 13 federal circuits and 50 state supreme courts, the U.S. Supreme Court may want to step in and clarify certain legal issues so every court operates under the same law going forward.
- National importance: If a case has national significance and is important to the public as a whole, the Supreme Court may decide to take it on. The Supreme Court has discretion when it comes to taking these cases, such as Bush v. Gore after the contested 2000 election, Roe v. Wade, or US v. Nixon concerning the Watergate tapes.
- Lower courts disregarding Supreme Court decisions: If a case has arisen because lower courts are disregarding past Supreme Court decisions, the Supreme Court may decide to hear the case to correct the lower court or overrule the case without a full trial.
- Justices’ interest: In certain cases, a justice may want to hear a certain case because it addresses an issue in their personal favorite area of law.
In every case that has been brought to the Court’s attention since Heller and McDonald, all four of the above factors are satisfied.
Yet, in all instances, the High Court has either denied cert or has side-stepped the Second Amendment issue altogether, as it had done in Voisine and in the recent New York City case.
So what does that tell you? It tells you that the Court will take up a case when it wants to. And that’s that!
In the instant case, Roberts and the liberal wing of the Court do not want to take up a 2A case, but then, the conservative wing won’t do so either, unless it can be assured that Roberts is on board with them. He isn’t and won’t be, ever.
The Roberts’ Court will not take up another Second Amendment case unless the Court is able to sidestep the core 2A issue as in the Voisine case, or in the recent NYC gun transport case, or when or if the liberal wing knows it has a decisive majority. That would be calamitous. It would sound the death knell for Heller and McDonald. Once our right to keep and bear arms will be lost, our Nation will be undone.
Thus, the conservative wing won’t wish to hear a Second Amendment case unless it knows that Roberts is on board, and Roberts will never be on board.
Understand, each Justice knows how each of the others would resolve a case before any vote is cast to grant cert or to deny cert on a case.
Justice Thomas’s scathing dissents reflect his knowledge—which obviously, he cannot express openly—that Roberts will not support the Second Amendment. It is as simple as that.
So, forget further support from the High Court apropos of the preservation of and strengthening of our Bill of Rights, given the Court’s current composition with five Justices clearly antithetical to preservation and strengthening of our fundamental, unalienable, immutable, illimitable rights and liberties.
Those five Justices antithetical to the preservation and strengthening of our sacred rights and liberties include: Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Chief Justice John Roberts, whom the seditious, tabloid, New York Times continually, invariably, and deceptively includes in the roster of the conservative-wing of the High Court.
Of the conservative-wing, only Justices Clarence Thomas and Samuel Alito adhere, most consistently, to the import of the text of the Constitution as originally ratified and to the import of Statutes as written.
The current majority on the Roberts Court may neuter the Bill of Rights, but they cannot so easily neutralize an armed citizenry that refuses to give up its natural rights.
–Roger Katz is a practicing attorney and writes for The Arbalest Quarrel.