There have been few times in the history of the Supreme Court when its doctrinaire logic needed more moderation and practical wisdom.
Any day now the court is about to decide New York State Rifles and Pistols Association vs. Bruena challenge to a New York law requiring people seeking licenses to carry a concealed handgun to show a “good cause”, defined as “a special need for self-protection”.
The opinions are likely in their final stages, so this column is an eleventh-hour call for judges to pause and consider — in light of the massacres in Uvalde, Texas, and Buffalo, and the National Gun Violence Epidemic – The Consequences of Their Judgment. The language they use matters a lot, not so much for the case at hand as for the scope of other gun regulations that will be deemed permissible.
I have no illusions here. The court did not take this case to uphold New York law. Conservative justices have been eager to further define the contours of the Second Amendment for years. They have a legitimate point – and a chilling gripe.
The legitimate point is this: since the court ruled in 2008 in District of Columbia v. Heller that the Second Amendment protects an individual’s right to bear arms in self-defense, lower courts were not given further guidance on how to approach the constitutionality of gun laws .
The chilling criticism is that while the lower courts have coalesced around a standard for the review of gun regulations, they have focused on the Heller the court’s warning that the Second Amendment “is not unlimited”. As a result, lower courts have overwhelmingly dismissed challenges to the constitutionality of gun restrictions, leading some conservative justices to lament the courts’ supposed treatment of the Second Amendment as a “second-class right.” “.
But the courts – including a number of judges appointed by Republican presidents – were only doing their job as stated in Heller. “Nothing, in our view, should be construed to cast doubt on long-standing prohibitions on the possession of firearms by criminals and the mentally ill, or laws prohibiting the carrying of firearms in places sensitive such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,” Judge Antonin Scalia wrote for the five-judge majority. footnote, “We identify these presumptive lawful regulatory measures only as examples; our list does not purport to be exhaustive.”
heller, in my opinion, has been badly decided, but this wording could leave, in the hands of judges wishing to elevate practical wisdom above doctrinaire logic, an important place for reasonable regulation. Again, it was not the court that decided Heller. The limitations it imposed on gun rights, as Judge John Paul Stevens later revealed, were added at the insistence of Judge Anthony M. Kennedy, at the cost of his majority adherence.
But today, there are six conservative judges, not five. Kennedy was replaced by Judge Brett M. Kavanaugh; as a judge of the Court of Appeal, in a case resulting from heller, Kavanaugh wrote a dissenting opinion claiming that the district’s ban on assault weapons violated the Second Amendment because such firearms are “in common use” and historically unregulated. Likewise, he said, the district’s mandatory gun registration law was unconstitutional “because the vast majority of states have not traditionally required and even now do not require the registration of legally owned firearms”.
And Judge Amy Coney Barrett, as an appeals court judge, wrote a dissent saying a man convicted of felony mail fraud should not have been deprived of his right to have a gun with no indication that he posed a danger – despite the court’s apparent backing. in Heller for “the long-standing ban on the possession of firearms by criminals”.
Where does that leave things? As I said, New York’s law, similar to that of six states, is almost certainly falling. The crucial question is how. Will conservative judges take the opportunity to scale back the kinds of permitted firearms regulations outlined in Heller? If so, their timing couldn’t be worse – or the impact more unfortunate.