Upcoming Supreme Court Case Likely to Expand Gun Rights


Supreme CourtIan Hutchison

The Supreme Court has stayed away from gun regulation for nearly all of its history.

The Second Amendment expressly declares that it exists to safeguard "a decently regulated Militia," and the Court has taken these four words very seriously until recently.

The "obvious aim" of the Second Amendment, as a unanimous Court argued in United States v. Miller, was to "Render possible the efficacy" of militias, and the amendment must be "interpreted and enforced with that end in mind." Miller's approach granted states broad ability to restrict weapons because the kinds of militias that interested the framers in the 1790s are now no longer common.

The Court's ruling is dense with language emphasizing that "the right granted by the Second Amendment is not boundless," and it even lists a number of key restrictions on gun rights.

Lower courts have "considered countless cases involving Second Amendment challenges to a range of federal, state, and municipal restrictions," as conservative Justice Samuel Alito noted in a 2020 decision, and "most have failed."

Because of Heller in 2008, the constitutional right to own a gun is now stronger than it has ever been in the 217 years since the Second Amendment was ratified, but it is still weak enough that state and local governments can prevent most Americans from carrying a gun on city streets and other densely populated areas.

The Supreme Court will hear oral arguments in New York State Rifle & Pistol Association, Inc. v. Bruen, a challenge to a 108-year-old New York state law requiring anybody who intends to carry a pistol in public to demonstrate "Proper Cause" before obtaining a license to do so.

In New York, obtaining a license to carry a gun for limited purposes is quite simple; the plaintiffs in NYSRPA include two individuals who already hold a license allowing them to carry a gun for hunting, target practice, and in regions not "frequented by the general public." A license to carry a gun while commuting to work is also required.

Neither plaintiff acquired an unlimited carry license, and New York courts require applicants to "demonstrate a special necessity for self-protection that is distinguishable from that of the general public or of others engaged in the same profession." The petitioners filed a lawsuit, arguing that they are entitled to a license with no restrictions.

The Court's most significant Second Amendment decision since Heller might be NYSRPA, and it could be just as revolutionary as that 2008 decision.

The government still has broad authority to prohibit gun use under current law. When Heller concluded that the Second Amendment guarantees an individual right to self-defense, not only a right to state-run militias, it opened the door to overturn judicial precedent.

Both Kavanaugh and Barrett filed opinions as lower court justices advocating for a broad interpretation of the Second Amendment.

Kavanaugh is one of the most vocal dissidents from the federal appeals courts' mainstream approach to the Second Amendment that has existed since Heller.

At least ten federal appeals courts - in fact, every court that has heard a Second Amendment matter since Heller - have used a "Two-step analytic framework," as federal appellate Judge Stephen Higginson describes it. "Severe burdens on essential Second Amendment rights" are subjected to "Strict scrutiny" under this paradigm, which is the most skeptical degree of review in most constitutional issues.

A US Court of Appeals struck down an Illinois law prohibiting nearly anyone from carrying a loaded gun outside their home, reasoning that the law infringes on core Second Amendment rights because no other state had a similar law on the books - and "few states did during the nineteenth century."

Lower courts affirmed a slew of smaller limits on gun rights.

Kavanaugh, who was still a lower court judge at the time, was one of those critics, arguing in a 2011 dissenting decision that the framework should be scrapped.

"Courts are to evaluate gun bans and regulations based on text, history, and custom, not by a balancing approach like severe or intermediate scrutiny," Kavanaugh asserted.

So it appears that, at the very least, the lawyers involved in this case believe that the Supreme Court will most likely follow Kavanaugh's lead.

Does the "Text, history, and tradition" test actually work? If the merits arguments filed in NYSRPA are any indication of how lawyers should approach this "Text, history, and tradition" inquiry, it essentially entails referencing a slew of past laws and court decisions, then debating whether those old laws reflect the current legislation now before the Court.

The plaintiffs cite a slew of old state supreme court judgments, largely from the South, that demonstrate early Americans enjoyed broad gun rights.

To support its interpretation, New York marshals its own collection of centuries-old laws and court decisions.

In other words, the state's brief is more nuanced than the plaintiffs', arguing that different parts of the country have different gun laws and that city dwellers are often forced to put their guns away, except when traveling through sparsely populated areas where they must rely on their own armaments for protection.

Liberal legislators were more likely to approve stronger gun rules, while conservative legislators were more likely to support broad gun rights, but neither may matter if the Supreme Court expands on Heller.

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