A Second Amendment Sequel Premieres Next Week in U.S. Supreme Court

 angela n. / flickr (CC BY 2.0)

With the Mississippi and Texas abortion cases on the docket now, the U.S. Supreme Court’s current term will be defined by what the justices decide on abortion. But those cases should not totally eclipse others on the docket with major significance for the law and for Americans.

On November 3, the justices will take up their first substantive Second Amendment case in 11 years, New York State Rifle & Pistol Association v. Bruen, just two days after the they hear arguments in the United States’ suit against Texas, a challenge to that state’s ban on abortions after the sixth week of pregnancy.

It is a moment long sought and relentlessly pressed by gun rights groups. It also has been pursued by four justices—Clarence Thomas, Neil Gorsuch, Samuel Alito and Brett Kavanaugh—who have been frustrated by the court’s refusal, until the arrival of Justice Amy Coney Barrett, to take any of the many Second Amendment petitions filed each term.

Depending on what approach the court uses to judge the gun restriction at the center of this latest case, its ruling could have a profound impact on the fate of gun regulation in the future.

The membership of the court has changed dramatically since the court first considered the scope of the Second Amendment’s protections. Only four of the nine who served that term remain: Chief Justice John Roberts Jr. and Justices Clarence Thomas, Stephen Breyer and Samuel Alito Jr.

The Supreme Court’s landmark gun rights decision was in 2008 in District of Columbia v. Heller. In that case, a 5-4 conservative majority ruled that the Second Amendment guaranteed an individual right to possess a gun for “traditionally lawful purposes,” such as self-defense in the home. In 2010, the same 5-4 majority held that the Second Amendment’s protections applied to the states.

The court made clear in the 2008 decision that the Second Amendment right, like our other rights, was not unlimited, and it recognized certain important limits:

  • It is not a right to keep and carry any weapon in any manner for any purpose. “For exam­ple, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues,” Justice Antonin Scalia wrote, author of the majority decision.
  • long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws impos­ing conditions and qualifications on the commercial sale of arms.
  • prohibitions on the carrying of “dangerous and unusual weapons.

While other limits on constitutional rights usually are subjected to one of three types of special scrutiny by the courts, the majority in the 2008 declined to take that approach and instead leaned heavily on historical justifications for its non-exhaustive list of the limits noted by Scalia.

“But since this case represents this Court’s first in-depth examination of the Second Amend­ment, one should not expect it to clarify the entire field. … And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us,” Scalia wrote.

And that is where this new battle is joined: the type of analysis or methodology that courts should use in weighing the constitutionality of particular gun restrictions. Most courts use a two-step approach, asking first, if the regulation implicates the Second Amendment and if it does, applying intermediate scrutiny. That type of scrutiny requires the government to show the regulation is substantially related to an important governmental objective. Gun rights advocates have criticized this test as too easy for the government to pass.

In New York State Rifle & Pistol Association v. Bruen, the association and two New York gun owners challenge New York’s requirement for obtaining a concealed-carry license. The state, which prohibits open carry, grants concealed-carry licenses only “when proper cause exists” for them.

Much as it was in 2008, this case involves competing views of history. In 2008, the historical debate was over whether the right to keep and bear arms was an individual right or a collective right. This time the debate is over the history of gun regulations from 1328 forward.

When he sat as a judge on the U.S Court of Appeals for the District of Columbia, then- Judge Kavanaugh was considered the first to state that the Second Amendment test for determining the constitutionality of gun bans and restrictions, drawn from the 2008 decision, was “text, history, and tradition.”

Barrett appeared to have embraced that view in a dissenting opinion in 2019 when she was a judge on Seventh Circuit. The case questioned the constitutionality of a federal law banning most convicted felons from possessing firearms for life. The felon challenging the law had been convicted of mail fraud.

Barrett wrote that history reflected that legislatures could only strip dangerous felons of their Second Amendment right. The Supreme Court’s 2008 decision, she wrote, “is pretty clear that the scope of the Second Amendment needs to be determined by its history. But neither the convention proposals nor historical practice supports a legislative power to categorically disarm felons because of their status as felons.”

Gorsuch, who like Thomas, is a self-described originalist, joined Thomas in a dissenting opinion in 2017 when the justices declined to review a California law that, like New York, imposed a “good cause” requirement for issuing concealed carry licenses. Thomas wrote that the definition of “to bear arms” in the 2008 Heller decision included public carry of guns.

“I find it extremely improbable that the framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen,” Thomas wrote. Gorsuch did not write separately, only signing onto Justice Thomas’s dissent.

More than 80 friend-of-the-court briefs have been filed in the New York case, with nearly an equal number supporting each side and ranging from social science groups to historians to religious organizations to constitutional law scholars and more.

But advocates on both sides likely will be listening most closely to the three newest justices, Trump appointees Gorsuch, Kavanaugh and Barrett, for clues as to where they would take the future regulation of guns.

The challengers to the New York law originally asked the justices to decide a broad question that encompassed both concealed and open carrying of guns. But when granting review, the justices rewrote the question to be decided. The narrower rewrite asks whether the state’s denial of the gun owners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.

Narrowing the issue in the case is something that Roberts would be prone to do—deciding no more than necessary, particularly in such a controversial area of the law. But no one knows exactly what the justices had in mind. Will they go big, or will they go small? Perhaps we’ll know more after next week’s arguments.

Don’t forget that you can hear the arguments in real time by following the link on the court’s homepage here.

Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.

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