Behind Closed Doors

Mar 25, 2021

Three years ago, Supreme Court Justice Clarence Thomas wrote “the Second Amendment is a disfavored right in this court.”

Since then, not much has happened to change his impression, or mine. The Supreme Court, or more specifically Chief Justice John Roberts, doesn’t want to go anywhere near the Second Amendment if he can avoid it.

Since “landmark” decisions in 2008 and 2010, the Supreme Court - under Chief Justice Roberts - has assiduously avoided Second Amendment cases.

Last June, Justice Brett Kavanaugh expressed his hope that the court would take up a Second Amendment case “soon”. It will “soon” be a year since Kavanaugh’s (apparently) misplaced hope.

Seems the court’s been reluctant to take up Second Amendment cases is partially due to Chief Justice Roberts’ tendency to want to interpret law rather than follow it. With the Court evenly divided court due to the passing of Justice Ginsberg, it was difficult to know where the “wild card in charge” would fall on significant issues.

More often than not, Roberts has sided with the more liberal side of the court. That kind of leaning seems to have made the more conservative justices leery of bringing “a disfavored right” before a court where Roberts could potentially cast a deciding vote.

With the Trump administration’s appointment of Justice Amy Coney Barrett, however, there’s a chance the court may finally consider Second Amendment cases. Justice Barrett has a demonstrated willingness to follow the Second Amendment and has struck down excessive gun regulations in her prior rulings in the lower courts.

If that’s the case, it would mean that rather than avoiding the Second Amendment, the Justices might actually include a Second Amendment case on their upcoming docket.

Tomorrow, the Supreme Court will meet in conference behind closed doors, to “discuss” whether or not to add the case challenging New York’s law governing licenses to carry concealed handguns in public.

As the law stands today, residents are required to show “actual and articulable” need for a firearm before the permit is granted.

New York Attorney General Letitia James contends the law’s “consistent with the historical scope of the Second Amendment and advances New York’s compelling interest in public safety and crime prevention.”

Robert Nash, Brandon Koch, and the New York State Rifle and Pistol Association, the petitioners in the case, disagree.

Their counsel, former Solicitor General Paul Clement, says the case seeks to answer a key question: whether an individual has a right to bear arms for self defense where confrontations most usually occur -outside the home.

The New York law, Clement argues, makes it virtually impossible to obtain a concealed carry license. As he explains it, good, moral character, plus the simple desire to exercise a fundamental right, isn’t enough. Neither is living in a high-crime area.

Having such a case come up only days after another mass-shooting will undoubtedly make the Chief Justice uncomfortable. With a demonstrated willingness to avoid hot-button issues, he may argue that the court should wait for a more “limited” case regarding the Second Amendment.

The unanswered question is whether or not the new justices are willing to buck the boss and vote to include a Second Amendment case on their new docket.

We’ll keep you posted.

On another topic, following our features on banks and credit card processing groups that were friendly toward the Second Amendment, we asked the industry to help us compile a couple of lists- allies versus enemies -as it were.

Yesterday, we received a listing of banks that were graded (in April of last year) according to their “friendliness toward the gun industry.”

Because the group that did the physical ranking ( compiled the list, their scorecard actually inverts to rank the banks.

Citibank scored the highest of major banks using their tests- 84 out of a possible 100 points.

Using the “gun-friendly” standard, Citi would only score 16 points-decidedly a fail when it comes to pro-Second Amendment positions.

That having been said, here is the “most pro 2A” banks on their list:

  • BB&T (worst score under the rating -20/100)
  • Wells Fargo (25/100)
  • TD Bank (35/100)
  • US Bank Corp (35/100)
  • PNC (41/100)
  • Chase (48/100)

We’re working on several related topics, pulling together resources to help us select companies we’d do business with -based on their support for the Second Amendment.

As always, we’ll keep you posted.

— Jim Shepherd