There is a pattern in federal courts that anyone who has litigated a constitutional challenge will recognize. The case is filed. The constitutional argument is solid. The government has no good answer on the merits. So instead of fighting on the merits, the government argues that the court should not reach them at all. Standing problems. Ripeness problems. Exhaustion of administrative remedies. Sovereign immunity. Constitutional avoidance. The goal is to keep the courthouse door closed long enough that the constitutional question never gets answered.
Courts have been accommodating partners in this project. Judicial restraint, they call it. Prudence. Avoiding unnecessary constitutional decisions. It sounds responsible. It is not. When a court with proper jurisdiction over a constitutional question declines to decide it, that court is not being cautious. It is siding with the government against the Constitution it swore to uphold.
Cohens v. Virginia, decided unanimously by the Supreme Court in 1821, established the rule that forecloses this evasion. Chief Justice Marshall wrote that it is the duty of the Court to decide every case coming within its constitutional jurisdiction, to prevent the supreme law of the land from being prostrated at the feet of every state in the Union. That duty is not discretionary. It does not bend to judicial discomfort, political sensitivity, or the government preference for avoiding the merits.
What the Case Was About
Philip and Mendes Cohen sold lottery tickets in Virginia that were authorized by a federal statute. Virginia had its own lottery law prohibiting the sale of out-of-state tickets. Virginia courts convicted the Cohens and fined them. The Cohens argued that the federal statute authorized their conduct and that state law could not override it under the Supremacy Clause. Virginia argued that the Supreme Court had no jurisdiction to review state criminal convictions. Marshall rejected that position completely. Article III gives federal courts jurisdiction over all cases arising under the Constitution and federal law. The Supremacy Clause makes the Constitution and federal statutes supreme over state law. Declining to exercise that jurisdiction would allow the supreme law of the land to be prostrated at the feet of every state in the Union.
The Non-Discretionary Duty
Cohens establishes that the judicial duty is non-discretionary. When a case properly within the court jurisdiction raises a conflict between a statute and the Constitution, the court must decide it. The word must is not soft. It does not mean the court should probably get around to it when convenient. It means the court constitutional role requires a decision. A court that accepts jurisdiction over a case but then refuses to reach the constitutional question is not playing a neutral role. It is making a decision with constitutional consequences. By leaving a statute in place that contradicts the Constitution, the court is choosing the statute over the Constitution. That is not restraint. It is a choice, and it is the wrong one.
The Structural Point
Every time a federal court dismisses a Second Amendment challenge on standing, ripeness, exhaustion, avoidance, or any other procedural ground without reaching the merits, it is doing what Cohens prohibits. It is allowing the supreme law of the land to be prostrated. It is choosing the statute over the Constitution. And it is doing so in the name of judicial restraint, which is exactly the kind of constitutional evasion with citations attached that the Supremacy Clause was written to prevent. The duty to decide is not optional. Marshall said so in 1821. Nothing in the Constitution has changed since then.