When Supreme Court justices meet behind closed doors Friday, a conference that comes three days after the country’s latest mass shooting, they are scheduled to discuss whether to add a blockbuster issue to the docket for next term: the scope of the Second Amendment.
The court has largely dodged the issue since issuing two landmark opinions in 2008 and 2010, when it held for the first time that the Second Amendment protects an individual’s right to keep and bear arms at home for self- defense.
Gun rights advocates and even some of the justices themselves have expressed frustration that the court has declined to further define the scope of the right as lower courts across the country have upheld restrictions.
Three years ago, for example, Justice Clarence Thomas charged that the “Second Amendment is a disfavored right in this court.”
Justice Brett Kavanaugh, after the court effectively dismissed one case last term, wrote that he hoped that the justices would vote to take up a new case “soon.” Still, last June, perhaps with the knowledge that there weren’t five votes ready to decide, the court again declined to take up several new cases.
With the addition of Justice Amy Coney Barrett, supporters of gun rights hope the justices will wade in now and experts wonder if the justices are poised to add the issue to next term’s docket.
“As a circuit judge, Justice Barrett showed a readiness to invoke the Second Amendment to strike down gun regulations, and she is likely to vote with the other justices eager to take up a Second Amendment case,” Jacob D. Charles, executive director of the Center of Firearms Law at Duke Law, said in an interview.
Even if Chief Justice John Roberts and the court’s three liberals don’t want to consider this particular case, the other five conservatives could work around him should they choose.
The new case concerns a New York law governing licenses to carry concealed handguns in public. It requires residents to show they have what the state calls an “actual and articulable” need to do so.
According to the Giffords Law Center, although most states continue to require a permit in order to carry a concealed weapon, many states now place few or no restrictions on open carry. All states allow concealed carry, but a majority require a permit and the standards for issuing such permits vary significantly.
Three states (California, Florida, and Illinois) and the District of Columbia generally prohibit people from openly carrying firearms in public. Two states (New York and South Carolina) prohibit openly carrying handguns, but not long guns, and another three states (Massachusetts, Minnesota, and New Jersey) prohibit openly carrying long guns but not handguns. In the remaining states, people are generally allowed to openly carry firearms although some states require a permit or license to do so.
“The law is consistent with the historical scope of the Second Amendment and directly advances New York’s compelling interests in public safety and crime prevention,” New York Attorney General Letitia James wrote in court papers.
Since the 2008 and 2010 rulings, James argued, courts have held that the right to carry firearms in public is not unlimited and can be subject to regulatory measures consistent “with longstanding limitations on that right.” Lower courts upheld the state’s restriction.
The petitioners in the case are Robert Nash, Brandon Koch and the New York State Rifle and Pistol Association, represented by former Bush administration Solicitor General Paul Clement.
Clement urged the justices to step in, arguing that the “single most important unresolved Second Amendment question” is whether an individual has a right to bear arms for self-defense “where confrontations often occur: outside the home.”
The law makes it almost impossible for an ordinary individual to obtain a license, Clement said. “Good, even impeccable, moral character plus a simple desire to exercise a fundamental right is not sufficient,” he wrote “Nor is living or being employed in a high crime area.”
Nash, for instance, requested to carry a handgun for self-defense after a string of robberies in his neighborhood but he was denied because he did not demonstrate a special need for self-defense. Koch wanted a similar license and he was able to cite his experience of participating in safety training courses. He too was denied.
Koch wanted a similar license and cited his participation in safety training courses. He too was denied.
The justices could also decide to weigh in more incrementally. They could pass up such a significant and controversial issue, and wait, for example, for a more targeted law on a less controversial subject such as a law concerning rights for people convicted of non violent crimes or laws related to mental health issues.