Supersizing the Second Amendment

The Supreme Court just took a case that could lead to yet more guns on the streets.

“It appears the votes are now there to supersize the Second Amendment’s protection for guns,” Adam Winkler, a law professor at UCLA and the author of Gun Fight: The Battle Over the Right to Bear Arms in America, told me.

He was referring to the Supreme Court’s decision on Tuesday to grant review in New York State Rifle & Pistol Association Inc. v. City of New York, New York.

It has been 11 years since a 5–4 majority, in District of Columbia v. Heller, announced that the Second Amendment protects an individual right to possess handguns in the home for purposes of self-defense. It has been nine years since the same majority held in McDonald v. City of Chicago that an identical handgun-possession right is “incorporated” by the due-process clause of the Fourteenth Amendment (which means it applies to states—and cities—as well as to the federal government). The Court in Heller indicated that it was deciding only a narrow question. Justice Antonin Scalia’s opinion cautioned that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Then, for a decade, the high court retreated from the field, while lower courts wrestled with gun-rights challenges around the country. Those courts had a tough job: Heller and McDonald were not self-explanatory. The Court found an individual “right to bear arms” for the first time in American history, but did not explain its full scope. Is gun ownership for purposes other than self-defense also protected? Does the “right to keep and bear arms” extend to semiautomatic weapons? Are license requirements themselves violations of the right—especially if local police must approve them before they are issued? Can localities charge fees to handgun purchasers to offset the costs of gun crime? Are restrictions on public carrying of handguns—or carrying in public of concealed handguns—constitutional?

The lower courts have been split on those issues, but the Supreme Court remained obdurately silent—until Tuesday.

Almost of necessity, the result is likely to give lower courts what they have lacked—a constitutional test that can be applied to a wide variety of handgun restrictions. And as Winkler suggested, the new conservative majority seems likely to create a test that will invalidate many local laws—and may in fact shred the entire fabric of state and local gun regulation.

The petitioners in Rifle & Pistol are a gun-advocacy group and a number of individual New York City residents. The individuals have “premises licenses” to possess handguns in their homes, à la Heller and McDonald, but not the harder-to-get “carry licenses” to take their handguns with them when they go out.They are free to use their handguns at gun ranges for target practice and shooting contests—but only if those gun ranges are located in New York City. These limitations, the plaintiffs complain, make it difficult for them to visit out-of-town gun ranges, and to carry their guns for self-protection to second homes outside the city.

Until 2001, New York issued “target licenses” that allowed transport to out-of-state target ranges. However, the state said in its brief opposing Supreme Court review:

[The New York Police Department] observed widespread abuses of the target license. Over many years, NYPD received reports of target licensees travelling with their firearms when they were not travelling to or from an NYPD-authorized range. These reports included licensees travelling with loaded firearms, licensees found with firearms nowhere near the vicinity of an authorized range, licensees taking their firearms out on airplanes, and licensees travelling with their firearms during hours when no NYPD-authorized range was open.

In effect, it seems, the city decided that allowing the “target exception” to its transportation rules was making it too easy to evade them entirely. The “premises license” limitations are unusually stringent. Nonetheless, the Court of Appeals for the Second Circuit upheld them. That decision noted that Heller and McDonald did not create a general Second Amendment test. So the court measured the restrictions by their effect on the Heller right: possession in the home for self-defense.

The appeals court also noted that the city has not barred all target ranges; the plaintiffs can go to licensed gun ranges to learn to shoot. Those who prefer to go to out-of-town ranges may do that as well—most gun ranges have weapons available for loan or rent. As for second homes, the plaintiffs need only buy a second handgun and store it there for self-defense when in residence.

Without a test issued by the Supreme Court, the Second Circuit employed “intermediate scrutiny.” Unlike “strict scrutiny”—a test almost impossible to pass—the intermediate test asks whether a law is “substantially related to an important governmental interest”—that is, whether it does a pretty good job of helping the government achieve a goal that seems pretty important. Balancing the mild burden on the challengers’ right against the city’s need to keep guns out of public areas, the appeals court upheld the transport regulations.

The long-term aim of the gun-rights movement is to move the Second Amendment up into the tier of rights that are insulated from virtually any regulation; most prominent among these are free speech and religious freedom. The challengers’ petition in this case argues that the Supreme Court would never tolerate, for example, license fees for newspapers; it further quotes McDonald as saying that the “right to bear arms” should not be treated as a “second-class right.”

There are signs that the Court’s new conservative majority may be ready to move sharply in the direction of stricter review of gun laws. Justice Samuel Alito was in the majority in Heller andMcDonald; as an appeals-court judge, he had argued that the federal government could not ban machine guns. Justice Neil Gorsuch heard no gun cases as a circuit judge, but in 2017, he joined Justice Clarence Thomas in a hard-line dissent that advocated broad gun rights. In that case, the Court denied review to a case challenging a California locality’s restrictions on carrying handguns in public. Thomas wrote in his dissent, “The right to bear arms extends to public carry.” In joining that dissent, Gorsuch sent a strong message about where he stands.

As for Justice Brett Kavanaugh, he has left no doubt about his view. After the Supreme Court decided Heller, the District of Columbia revised its firearms laws to require registration of all weapons—and prohibited registration of assault rifles and high-capacity magazines. In 2011, the Court of Appeals for the D.C. Circuit upheld the new law by a 2–1 vote.

The dissenting vote came from Kavanaugh. According to his reading of Heller, Second Amendment rights are not to be decided by a constitutional “test” in the ordinary sense. Courts need not “balance” a state’s interests, such as preventing crime, against the burden on gun ownership. Instead, gun-ownership rights stand on their own and need no justification in any situation. Judges should assess “text, history, and tradition” only. First, a court is to ask how a given restriction compares with those accepted by the framers of the Second Amendment (this inquiry includes “appropriate analogues [to“traditional” weapons] when dealing with modern weapons and new circumstances”). Next, it must ask how the restriction at issue compares with the role of weapons in society since the framing. Using his “text, tradition, and history” analysis, Kavanaugh wrote that he would have struck down both the assault-rifle ban and the magazine restrictions. One of his reasons was that most places in 2011 didn’t ban assault rifles; that meant the D.C. statute was not “traditional.”

Classic “originalism” is already at best subjective; we really can’t know with certainty what Americans “understood” about the Constitution when it was adopted. Legal history can be read many ways; adding in “tradition”—that is, a freewheeling assessment of the history of firearms not limited to legal sources and spanning the years from 1787 until now—creates a jurisprudential bullet that probably can pierce precedent, or public policy, or both.

The Rifle & Pistol case begins, then, with four virtually certain votes against the New York law—the two newcomers, Thomas, and Alito. Chief Justice John Roberts voted for the gun owners in Heller and McDonald. He may have been trying to keep the Court out of the Second Amendment area for institutional reasons since then, but that’s not likely to make him go back on his earlier votes when the time comes to throw down.

“The impact of this case could be huge,” Winkler told me, because the Court may decide that the right to gun possession extends outside the home. The Court could undermine long-standing restrictions on concealed carry in America’s major cities, leading to hundreds of thousands more guns on the streets of Los Angeles, New York, and Washington, D.C.

Beyond that, a sharp jurisprudential turn on guns may signal that a confident conservative majority feels ready to make big leaps to the right in other areas, ranging from campaign finance to religious freedom to civil rights to abortion.