The Supreme Court’s public inaction on a hugely important right to carry case has some Second Amendment supporters concerned and convinced that, even with Justice Amy Coney Barrett on the bench, the Court still has no appetite to take a case dealing with the right to keep and bear arms.
On today’s Bearing Arms’ Cam & Co, we take a closer look at the reasons why some gun owners are absolutely certain that the Second Amendment remains a disfavored right in the highest court in the land, as well as why this gun owner isn’t ready to give up hope… yet, anyway.
The primary reason for the skepticism of gun owners when it comes to the Supreme Court is simple. It’s been more than a decade since the Court issued an opinion in a Second Amendment case. Since the decision in McDonald v. Chicago that struck down the city’s ban on handguns, the Court has rejected dozens of cases that challenged gun control restrictions in states across the country, including bans on so-called assault weapons, restrictions and infringements on the right to carry, and gun laws like California’s microstamping mandate that are slow-motion handgun bans.
When the Supreme Court did accept a case that took on a New York City gun law forbidding the transport of legally-owned handguns anywhere other than ranges in the city, the Court ultimately dismissed the case last year, ruling that the city had mooted the question by changing the law before the Court could hear the case. However, as the Washington Post reported at the time, there were four justices who made it clear that they wanted to hear a Second Amendment case sooner rather than later.
“By incorrectly dismissing this case as moot, the court permits our docket to be manipulated in a way that should not be countenanced,” wrote Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch.
But the setback for gun rights activists may only be temporary. It was clear from the decision that four justices — the minimum number needed to take a case — want to examine whether lower courts have been too quick to uphold gun control measures that might violate the Second Amendment.
Awaiting the court’s action are cases involving the right to carry arms outside the home and restrictions on the kinds of weapons that can be sold and possessed.
Although Justice Brett M. Kavanaugh wrote that he agreed the New York case was moot, he added, “I share Justice Alito’s concern that some federal and state courts may not be properly applying” the Supreme Court’s decision recognizing an individual’s right to gun ownership. “The Court should address that issue soon,” he wrote.
A few months after that decision, Justice Ruth Bader Ginsberg passed away, and Amy Coney Barrett was nominated and confirmed to the vacant seat. While we don’t know for sure that Barrett will be an eager vote to accept a Second Amendment case, even the Duke Center for Firearms Law (which is not exactly a bastion of pro-Second Amendment thought) says that Barrett took the Second Amendment seriously in her time as an appellate court judge.
Given her short tenure on the Seventh Circuit so far, it is probably too soon to conclude that these rulings allow us to distill her theory of firearms law, or even know whether she has a single definable one yet. But from these cases it is nonetheless evident that Judge Barrett takes gun rights seriously and recognizes that the ubiquity of firearms in American life requires adjustments to police practices, criminal procedure doctrine, and substantive criminal law.
Which brings us to the case currently being reviewed for cert or denial; New York State Rifle & Pistol Association v. Bruen (or NYSRPA v. Corlett, as it was known until recently). Should gun owners be alarmed by the fact that the Court has held this case over for consideration in multiple conferences? Not really, though I understand why some of us might be.
Cases can be relisted for consideration for a number of reasons, and not all them portend a rejection of this case. In fact, the Heller case itself wasn’t granted cert at its first conference. It’s quite possible that at least four justices have already voted to hear the case, but one of the justices who didn’t is writing a dissent arguing against the Court taking the case. The Second Circuit of Appeals has already upheld New York’s concealed carry licensing regime in a previous case called Kachalsky v. Cacace, so a Justice Kagan or Sotomayor could be writing a dissenting opinion taking the position that any dispute over the New York law has already been settled. Once that dissent is complete, the Court could announce that it’s granting cert in NYSPRA v. Bruen, while publishing the dissenting opinion along with its order (of course it’s also possible that the Court has decided to reject the New York case and is waiting on a dissent from one or more justices arguing that they should have granted cert).
Another possibility is that the Court is still weighing whether to accept the New York case or wait for another right to carry case to arrive at its doorstep. The Ninth Circuit ruled just a couple of weeks ago in Young v. Hawaii that the Second Amendment does not protect a general right to openly carry a firearm. Taken in conjunction with the Ninth Circuit’s 2016 decision in Peruta v. San Diego that the Second Amendment doesn’t protect a right to carry a concealed firearm, the largest appellate court in the land has declared that the right to bear arms doesn’t exist outside of the home. The justices who’ve publicly declared that they’re eager for the Court to hear another Second Amendment case may decide that the Ninth Circuit case poses a clearer question of law and once that isn’t burdened by any previous cases, and are waiting for the Young case before they grant cert in a right-to-carry challenge.
I’m less inclined to believe that’s the case, however, because we would likely have seen the Court already deny cert in the New York challenge if the justices were simply waiting on the Hawaii open carry case to become ripe for review. The same is true if there really aren’t the votes at the Supreme Court to hear any new Second Amendment cases. Instead of a quick denial, however, the Court is holding over the New York case for at least another week.
The bottom line is that, while I understand why some folks believe that the addition of Amy Coney Barrett hasn’t changed the Court’s unwillingness to hear a Second Amendment case, I think it’s a little premature to throw up our hands in disgust and give up on the Supreme Court when it comes to the right to keep and bear arms. Relisting a case isn’t automatically a bad sign, and the split in the appellate courts over whether or not the type of discretionary “may-issue” laws violate the Second Amendment rights of Americans should work in our favor.
However, if SCOTUS were to reject both the New York and Hawaii cases, I’ll join those Supreme Court skeptics who believe that, despite all the talk from conservative justices, the Court is willing to let our right to keep and bear arms be legislated out of existence. Until then, I’m trying to be patient, and I’d encourage you to do the same.