Opinion
Pro-Second Amendment groups, industry leaders, and attorneys often argue that getting the U.S. Supreme Court to issue a ruling that strengthens the natural law right of the people to keep and bear arms is a glacially slow, systematic, and intricate process.
That is, unfortunately, true. But why?
It’s true because the Supreme Court, under Chief Justice John Roberts, has orchestrated a judicial review process designed not only to slow the review of Second Amendment cases but also to indefinitely impede the review of the most significant cases.
As Chief Justice, he sets the tone and theme of the Court. It’s simplistic to think of Roberts as just one of nine Justices with equal say in the handling of cases that come before the Court on a petition for review.
Yes, he has one vote to grant or deny review of a case, as do each of the other eight Justices, but he has a profound say concerning the cases to be voted on. See, e.g., the article in “Legal Clarity.”
“The Chief Justice influences the Court’s docket, the list of cases the Court will hear. While any four justices can vote to grant certiorari and hear a case, the Chief Justice’s vote can hold outsized influence in this selection process.”
Some may argue that any Second Amendment case that the High Court takes up is reason for elation because all cases involving the fundamental natural law “right of the people to keep and bear arms”, are important, significant, momentous, noteworthy, consequential, epoch-making.” But qualification of the terminology is necessary to understand why Roberts will allow review of Second Amendment cases with a very narrow focus, while avoiding granting review of those that warrant special scrutiny.
Sure, the Court has reviewed Second Amendment cases in the period following Bruen, and it is doing so now.
But more to the point, there are Second Amendment cases that warrant special scrutiny because they involve issues of broad scope, clarifying the High Court’s rulings in Heller, McDonald, and Bruen.
Other Second Amendment cases warrant special scrutiny because they involve issues evidencing state disregard of or blatant defiance of the Court’s rulings in its landmark cases.
It is these cases that are, in fact, momentous. They, too, would deserve the appellation of “landmark cases.” Yet it is these kinds of cases that Roberts is averse to.
This is unconscionable and shows dereliction of his duty to diligently focus the Court’s attention on the most significant of Second Amendment cases.
If Roberts cherished the sacred right of the people [i.e., the American people] to keep and bear arms, he would have made this known to the Associate Justices. Evidently, he doesn’t. But why?
Had he done so, by encouraging the review of those Second Amendment cases of great importance, with expansive reach and impact, this would have signaled to the eight Associate Justices his strong commitment to advancing Supreme Court law and jurisprudence in that area.
This would yield rulings that can justifiably carry the appellation of Fourth and Fifth Landmark Second Amendment cases. We have two in mind, which we have written extensively about: Antonyuk vs. James and Snope vs. Brown, that came to the Court in 2025. The Court denied review of both.
Roberts could have garnered the four votes required to take up these two cases if he had only expressed a keen interest to the Associate Justices to do so.
The Chief Justice has had ample opportunity, but ever since the publication of the Third Landmark case, New York State Rifle & Pistol Association vs. Bruen, in June 2022, Roberts has used his influence, as Chief Justice, to prevent review of a petition that has the potential of yielding another landmark ruling.
This is no accident, nor evidence of incompetence. It demonstrates raw and deliberate sabotage of our Nation’s most sacred right.
To be sure, the Court has granted review of Second Amendment cases in the last few years, and a decision is pending in one of them, Wolford vs. Lopez, which we have discussed in previous articles.
While the Court agreed to review Wolford, Roberts consciously omitted from the Court’s consideration the most pressing of the two issues stated in the petition.
The crucial issue in Wolford explicitly asks the Court to explicate use of the new standard for reviewing challenges to state action that negatively impact exercise of the Second Amendment right.
Amplification, explication, and clarification of the new test were required once the High Court provided an inkling of it in the First Landmark Second Amendment case, District of Columbia vs. Heller (2008).
The Court pointed to the need for a new standard of review, having shown the flaws inherent in “interest-balancing” and alluding obliquely to a substitute test predicated on text and historical tradition.
Some scholars, not without reason, deny the Court had declared a new standard of review in Heller.
Anti-Second Amendment jurisdictions agreed with that assessment and reverted to the use of “interest-balancing.”
In Heller, the Supreme Court stated only that the lowest rung of that standard—“Rational Basis”—is not to be used where an enumerated, fundamental right is involved. Yet, that statement is found only in a footnote to the majority opinion.
These lower courts presumed the Supreme Court in Heller discussed, in dicta, problems associated with the old “interest-balancing” test, awaiting the crafting of a new standard by the High Court at a later date.
But it took over a decade for the Chief Justice to act. The Court discussed at length its new judge-made rule, “Historical Tradition,” in Bruen. It asserted that “the Government must show that the restriction ‘is consistent with the Nation’s historical tradition of firearm regulation.’”
But that statement raised more questions than it answered.
The Court laid out the broad contours of the new standard. The Bruen descriptor demonstrated parameters for court analysis of the constitutionality of state action impacting the Second Amendment, but the test lacked operational effectiveness. More work was needed.
Specifically, a formal ruling on correct application of the standard would be required, resulting in another monumental Second Amendment case.
But that never happened, leaving a quagmire in all the appellate jurisdictions.
Oddly, horribly, the Supreme Court demonstrated its own befuddlement in another case that came down two years later.
The 2024 U.S. Supreme Court case, United States vs. Rahimi, reiterated the words of Bruen, but the opinion unfolded as a confusing assemblage of judicial perspectives on the import of the “Historical Tradition” standard, highlighting a disturbing lack of consensus even among the Justices, demonstrating the difficulty if not the impossibility of formulating an unequivocal expression of “Historical Tradition” that the lower trial and appellate courts could make use of.
Worst of all, the ruling appeared as an afterthought, reflecting what many Justices assumed before the fact about how the case should be decided—thus mirroring the major problem with the prior “interest-balancing” standard.
Without a ruling, a reviewing court cannot consistently and coherently apply the test.
You would think that Roberts would sit down with the Justices and hammer out a coherent, cohesive, consistent framework for use of “Historical Tradition” in Second Amendment cases.
But apparently, this hasn’t happened. Roberts adamantly refuses to allow the Justices to take up the issue in a Second Amendment case.
In the latest case, Wolford, which the Court did grant review, the Petitioners specifically asked for clarification of the new standard. Yet Roberts omitted it from formal review by the Court.
How can the Court rationally avoid providing a ruling and guidance on the appropriate application of the “Historical Tradition” standard? Answer: “It can’t.”
The Historical Tradition Standard issue arises in every Second Amendment case. It remains the salient focus of every case involving the constitutionality of a state action directed to and impacting the exercise of the right to armed self-defense. The issue cannot be avoided. The need to tackle it is a legal necessity.
Yet the Chief Justice either purposefully or reflexively refuses to allow the Court to deal effectively with it.
Roberts’s adamant refusal to allow the Court to clarify the “Historical Tradition” standard—the backbone of Second Amendment inquiry—leaves a vacuum in Supreme Court law, severely weakening the Court’s prior three landmark case holdings and reasoning.
This acute neglectfulness also injures the sanctity of our most vital natural law right, “the right of the people to keep and bear arms.”
Roberts must answer for his deliberate failure to provide necessary guidance in the use of the new standard of review.
Congress should look into this matter. It can start by instituting an impeachment inquiry.
Duncan v. Bonta: Supreme Court Poised to Decide the Future of Gun Rights
ROGER J. KATZ, ATTORNEY AT LAW
Roger is an attorney licensed to practice law in Ohio and Arizona, and he is CEO of Arbalest Group, LLC.
He is a graduate from Cleveland State University, Cleveland Marshall College of Law, and was an Editor of Law Review, and he has earned a Master of Public Administration Degree from Cleveland State University. Roger also holds several degrees from The Ohio State University: a Master of Arts degree in Philosophy, a Bachelor of Arts degree in English, and a Bachelor of Science in Education degree in Secondary English Education.
Roger has worked as a high school English teacher and as a university administrative assistant. On earning a law degree he worked for several years as a Trademarks Examining Attorney with the United States Patent and Trademark Office in Washington D.C., and later worked as an attorney for a boutique intellectual property law firm in New York City.
Roger’s goal, working full-time on the Arbalest Quarrel website, involves preparing comprehensive and detailed analyses of case law pertaining to First and Second Amendment issues, and analyses of Federal and State laws and bills impacting the Bill of Rights, generally, and the Second Amendment, particularly.
Roger takes as axiomatic that, to maintain a free Constitutional Republic, our Bill of Rights must be preserved. If the latter falls, the former falls.
