The Second Amendment of the United States Constitution reads: ‘A well-regulated Militia, being necessary to the security of a Free State, the right of the people to keep and bear Arms, shall not be infringed,”
The Supreme Court has refused to hear a Second Amendment case for nearly a decade since it decided in two watershed cases in 2008 and 2010, that individuals, not solely the military, in every state and locality, have the Constitutional right to keep guns in their homes for their self-defense.
However, since advancing gun rights in 2010, the Court has refused to address whether this right extends to carrying weapons outside the home.
Now, with pro-gun Justice Brett Kavanagh bolstering the “absolutist views of Justices Clarence Thomas, Justice Neil Gorsuch and Justice Samuel Alito, Jr.,” according to The New York Times Editorial Board, the Court has granted certiorari to an NRA-backed challenge to a New York City ordinance barring gun-owners from transporting their weapons—even unloaded and locked in steel caskets—anywhere but to one of seven designated shooting ranges that have received certification from the New York Police Department.
The New Yorker’s Amy Davidson Sorkin writes that “the suit, which calls the city’s restrictions on transporting handguns through its streets ‘bizarre,” ‘irrational,’ and ‘perverse,’ was brought by the New York State Rifle & Pistol Association—the state affiliate of the National Rifle Association—along with two gun owners who live in the Bronx and one from Staten Island.”
The Pistol Association lost its challenge in Federal District Court in Manhattan in February, 2018. The decision was since affirmed by the United State Court of Appeals for the Second Circuit, also located in Manhattan.
The Supreme Court agreed last week to hear the case in the fall of 2019, and render a verdict before the end of the term on June, 30, 2020, in the heat of the Presidential primary season.
The Second Amendment case promises to be as divisive an issue as abortion or immigration, as “roughly 2 in 3 Americans said gun control laws should be made more strict after the murder of 17 people at Marjory Stoneman Douglas High School, according to POLITICO/Morning Consult poll conducted nearly one year ago, after the February 14, 2018, massacre.
“Could the Supreme Court’s conservative bloc use the case to declare that a gun owner has a Constitutional right to carry a handgun anywhere outside the home, sensible limits be damned? The Times asked in its January 31, editorial.
“Chief Justice John Roberts Jr. has, at times, played the role of centrist, and he may turn out to be a moderating force in keeping that from happening,” The Times writes.
“But the case could also significantly broaden gun rights, smack in the middle of the 2020 election campaign. This seemingly minor case shows that even moderate gun safety measures are at risk,” The Times Editorial Board concludes.
Kavanaugh’s Disastrous Pro-Gun Legacy
The New Yorker’s Sorkin writes, the Supreme Court case will be “the first opportunity for the Court’s newest member, Justice Brett Kavanaugh, to begin building what promises to be a disastrous-pro-gun legacy.”
“As an appeals-court judge in a 2011 dissent, Kavanaugh wrote that the District of Columbia should not be allowed to ban semi-automatic assault rifles, largely because they were ‘in common use.’
“He added that asking people to register their guns is unconstitutional. Kavanaugh has [also] written that public safety should not be a determining factor—only ‘text, history and tradition really matter.
“Gun-rights advocates have been waiting for Kavanaugh, or someone like him. Their brief was submitted on the day his confirmation hearings began,” Sorkin writes.
Justice Clarence Thomas also believes the right to bear arms is tantamount to a broad right to travel with them, she notes.
Thomas dissented when the Court refused to argue a challenge to a California gun control law in 2018, writing that the Second Amendment appeared to be the Court’s “orphan.”
Heller and McDonald Expand Gun Rights
Since advancing gun rights in 2010, “the lower courts have overwhelmingly upheld state and local gun control laws, “The New York Times Adam Liptak writes.
“The Supreme Court in turn, has refused to hear appeals from decisions. Justice Kavanaugh’s arrival changed that,” he concludes.
The Court rewrote Second Amendment law in the 2008 decision, District of Columbia v. Heller, which ruled that Second Amendment rights belong to all U.S. citizens, not solely to “a regulated militia”, or today, the military.
“Because the Heller case involved a law enacted by Washington DC, a Federal enclave, the Court did not address the significant issue of whether the Second Amendment restricts state and local governments,” The Gifford’s Law Center to Prevent Gun Violence, writes.
“Subsequently, in 2010, the Supreme Court held in McDonald v. City of Chicago, in a 5-4 decision written by Justice Samuel Alito, that the Second Amendment applies to state and local governments in addition to the Federal government.
In doing so, the Supreme Court reversed a 7th Circuit decision that dismissed NRA’s challenge to handgun bans in Chicago and Oak Park, Illinois, a ruling that six-time Democratic Mayor of Chicago, Richard Daley, disdained.
Lawmakers and Lower Courts Lack Guidance
“Additionally, while Heller provided examples of laws the Court considered ‘presumptively lawful,’ the decision does not offer guidance about how lower courts should evaluate challenges to firearms laws that are not among those examples, ”Gifford’s writes.
“As a result, subsequent courts have struggled with precisely how to scrutinize firearms laws, and legislators who wish to enact gun violence prevention measures that are consistent with the Second Amendment lack clear guidance on precisely how to do so.”
14th Amendment Due Process Clause Preempts States Rights
“The Court did note, however, that a series of 18th century decisions, beginning with United States v. Cruikshank, held that the Second Amendment applies only to the Federal government,” Gifford’s writes.
“Heller cautioned, however, that, “Cruikshank]…did not engage in the sort of 14th Amendment inquiry required by our later cases.”
This method of analyzing laws via the 14th Amendment’s equal protection clause is known as the “incorporation doctrine.”
The amendment answered the citizenship question for African-Americans after the Civil War. “All persons born or naturalized in the United States … are citizens of the United States and of the state wherein they reside.” It extended “due process” to the states, not just the federal government and offered “equal protection of the laws.”
“Subsequently, the Supreme Court in 2010 held in McDonald that the Second Amendment right to bear arms must be upheld by state and local governments in addition to the Federal government,” Gifford’s concludes.
Collective Right to Regulate Guns
The Washington Post editorial board wrote that the Court’s willingness to hear the challenge to New York City’s prohibition on transporting licensed, locked and unloaded handguns outside the city, which takes a minimum of four votes, suggests that conservative members of the court see an opportunity to expand Second Amendment rights”. We’re counting on Chief Justice John Roberts–who has sided with the pro-gun bloc in the past– to reverse course and vote with the Court’s liberal wing to further the collective right to regulate guns, rather than the individual right to bear arms.