A Prospective Expansion of Gun Rights

(Drew Angerer/Getty Images.)

(Drew Angerer/Getty Images.)

On January 22, 2019, the Supreme Court of the United States granted the New York State Rifle and Pistol Association’s petition for review of a Second Circuit Court of Appeals judgment that upheld New York City’s onerous handgun transportation laws.

While the state of New York already has some of the most strict gun laws in the country, New York City has numerous laws that apply in addition to those at the state and federal levels. Among these laws is a prohibition for city residents to transport their own handguns outside the city’s limits. Consequently, resident gun owners cannot legally transport their handgun to a home outside the city limits, to a sporting competition in another state, or to a gunsmith located in upstate New York. New York State Rifle and Pistol Association, a gun rights group, filed suit alongside several individual plaintiffs challenging the constitutionality of the law. After the Second Court of Appeals affirmed in February 2018 a district court’s ruling that upheld the constitutionality of the law, the plaintiffs filed a writ of certiorari, or a case reevaluation request, with the Supreme Court.

The significance of the Supreme Court’s decision to grant the writ cannot be overstated, as roughly “7,000-8000 new cases are filed in the Supreme Court” every court term. Out of those cases, the court chooses to review less than 200. These two-hundred or so cases span a wide variety of issues, from regulatory law to employment law to First Amendment law. Yet, over the Supreme Court’s entire history, the court has only dealt with roughly three cases that significantly clarified the meaning of the Second Amendment to the Constitution: United States v. Miller (1939), District of Columbia v. Heller (2008), and McDonald v. City of Chicago (2010).

While the Supreme Court’s decisions in Heller and McDonald went a long way into expanding Second Amendment jurisprudence for the lower courts to rely upon, they were by no means definitive. Among a number of questions the court left unanswered explicitly were, for example, whether individuals had a right to bear arms on their person outside the home, and if so, how. Another aspect of Second Amendment jurisprudence left unanswered is whether lower courts should judge the constitutionality of gun laws under strict scrutiny, intermediate scrutiny, or some other test. In fact, one major reason that these questions have been left unanswered has been their political volatility: the 5-4 Heller majority only emerged due to now-retired Justice Anthony Kennedy’s demand, after the urging of retired Justice Stevens, that Justice Antonin Scalia temper the judicial opinion.

With Justice Kavanaugh's replacement of Kennedy and Justice Neil Gorsuch’s replacement of Scalia, the Court is under much less internal political pressure. Three justices who sided with the majority in Heller are still on the Court; Justice Gorsuch joined Justice Clarence Thomas’ dissent (prior to the confirmation of Kavanaugh) that lamented the Court’s reluctance to set Second Amendment case law; Justice Kavanaugh authored a dissent expressing an expansive view of the Second Amendment back during his days as a judge on the D.C. Circuit Court of Appeals. And while Chief Justice John Roberts has a reputation as a moderate among the Court’s conservative bloc due to his siding with the majority in a case regarding the constitutionality of the Affordable Care Act, one study found that he only sided with the liberal side of the Court five times. Consequently, political considerations will probably not temper the coming Supreme Court decision.

Because of reliably conservative justices composing the majority, the least likely scenario to occur is that the Supreme Court upholds the Second Circuit decision; if such an event occurs, this will signal to legislatures, and the lower courts, that all gun control short of complete prohibition can pass constitutional muster.

A more plausible, but still unlikely, possibility is that the Supreme Court issues a narrow ruling that overturns the Appeals Court. Because none of the plaintiffs have been convicted under the contested law, , it would be almost absurd should the Supreme Court take up the case so as to issue a narrow ruling to overturn the Appeals Court. For the Supreme Court to take up a case out of the thousands petitioned that can have a very broad impact on Second Amendment jurisprudence--the fourth time in its history--and issue a decision that only affects a small group of gun owners living in a single city would have a significant impact upon future gun legislation.

One of two more likely possibilities would be the Supreme Court overturning the Appeals Court decision and holding that the lower courts should use strict scrutiny when evaluating gun laws. Within the United States, courts that consider the constitutionality of various laws can choose, depending on precedent, one of several categories of evaluative standards. Currently, many courts around the country apply what is known as the “intermediate scrutiny standard” when they consider the constitutionality of gun laws. This standard has been used by the lower courts in almost all decisions that have upheld gun control laws, including in this case, the Peruta decision, and Jackson v. City and County of San Francisco; these decisions found, respectively, the prohibition of concealed carry and a so-called “safe storage” requirement constitutional. In contrast is strict scrutiny, the standard by which, for example, the courts consider whether content restrictions of speech violate the First Amendment. For laws to pass constitutional muster under strict scrutiny, they have to pass a series of stringent tests to be as unburdensome as possible. The requirement that courts adopt such a standard would pose one of the greatest expansions of gun rights since the Heller decision in 2008. Consequently, if the Courts holds that strict scrutiny should be applied, gun control laws across the country could be overturned en masse.

Another possible outcome of the case is that the Supreme Court overturns the Second Circuit and orders the lower courts to use the so-called “text, history, and tradition” methodology that Kavanaugh advocated for in a dissent during his time on the D.C. Circuit, an interpretation apparently concurred with by Justices Scalia and Thomas, when evaluating gun control laws. According to the Kavanaugh dissent, historically long-standing gun control laws could be overturned using this method while recently-enacted gun control laws could be found constitutional and vice-versa. Kavanaugh’s dissent states that “indeed, governments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition than they would under strict scrutiny.” Consequently, the “text, history, and tradition” methodology may not prove as much a boon for gun rights as a “strict scrutiny” standard. Regardless, those with an expansive view of the Second Amendment should be happy to see the Supreme Court adopt either of these views and put an end to the intermediate scrutiny standard now so widespread. Under either of these two standards, Americans will finally be able to enjoy exercising their constitutionally-protected rights.