By: David French – nationalreview.com –
What’s going on?
The Supreme Court has taken its first gun-rights case in almost a decade, and it’s a strange case indeed. At issue is what appears to be a draconian, one-of-a-kind New York City law that prohibits any person who possesses a license to own a gun in their home from transporting that gun (even in a locked container, separate from its ammunition) anywhere except for one of the seven shooting ranges within the city.
Under this law, if you want to transport your gun to a shooting competition outside the city, you can’t. If you’re fortunate enough to own a second home, you can’t even take your own weapon to your own home. You can’t take it to any other shooting range. If you leave your house for an extended period, your gun has to stay in your vacant home. If you’re going to another location — where you have the right to possess or even carry the gun — the weapon can’t travel with you.
It’s an astonishing law, but it’s also (given its single-city applicability and the fact that very few New Yorkers are able to get gun permits to begin with) one of the most limited gun-rights cases in the country. In the years since the Supreme Court recognized that the Second Amendment protects an individual right to keep and bear arms and then ruled that the Second Amendment was applicable to state and local governments, it has time and again declined to rule on consequential cases.
For example, it has declined to hear appeals of cases upholding the New York and Connecticut “assault weapons” bans, declined to hear an appeal of the Maryland assault-weapons ban, and declined to hear an appeal of California’s ten-day waiting period for gun purchases. The latter decision caused Clarence Thomas to write a dissent from denial of certiorari that condemned the court’s inaction and expressed concern that this inaction was evidence that “the Second Amendment is a disfavored right in this Court.”
So, why step into the arena now? Given the originalist turn in the Court since Brett Kavanaugh’s confirmation — and given his previous gun-rights jurisprudence — I sincerely doubt the court granted review to affirm the Second Circuit’s decision and uphold the New York City law. Barring an extraordinary jurisprudential reversal, the law is on its death march. But what does this signal about the new Court’s approach to the Second Amendment more broadly? Here are a few potentially overlapping options.
There’s a new sheriff in town. Occam’s razor suggests that the cert grant is as simple as a change of personnel. While the four more originalist justices could have voted to take any of the significant cases above, it’s likely that there was real doubt (or real concern) about how Justice Kennedy would rule. The more progressive justices also could have voted to take the cases, but they likely shared the same concerns. Now, the jurisprudential lines are more clearly drawn, and the Court’s originalist bloc is ready to render decisive Second Amendment decisions.
It’s time to set a Second Amendment test. This is the most worrisome option. Ever since Heller, litigants have battled over the appropriate level of scrutiny to apply to regulations affecting Second Amendment rights. The highest level of traditional constitutional scrutiny, “strict scrutinyhttps://www.law.cornell.edu/wex/strict_scrutiny (the law must use “narrowly tailored” means to advance a “compelling governmental interest”), would mean that gun-control laws would tend to fail.
Lower levels of scrutiny, such as “intermediate scrutiny” (the law must advance an important government interest and must do so “by means that are substantially related to that interest”) have generally been applied by lower courts to uphold gun-control restrictions, including assault-weapons bans and restrictions on large-capacity magazines.
Are there five votes for strict scrutiny — a level of review that would put the Second Amendment on par with the free-speech clause of the First Amendment? I’m dubious. Moreover, I’m dubious that a Roberts court would make such an aggressive jurisprudential move in a case that doesn’t require setting a test to reach an outcome.
It’s the text, stupid. If I had to bet on the outcome and reasoning of this case, I’d bet it will follow from straightforward textualism. The Second Amendment recognizes the right to both “keep” and “bear” arms. How can you “keep” arms when you are required to leave them behind, in a vacant dwelling, when you leave your home? A person should be able to “keep” their weapon in the place where they lay their head. In addition, the right to “bear” arms “implies the learning to handle and use them.” A person’s right of self-defense travels with them, and while few scholars doubt that, say, a criminal-background check is a constitutionally valid restriction on the right to a handgun-carry permit or even the right to own a gun, the idea that a person can be blocked from transporting their lawfully owned gun to a different location — leaving their lawful means of self-defense behind — means that the words “keep” and “bear” have no real meaning at all.
One step at a time. Finally, it’s possible that plucking low-hanging fruit is one way to begin the long, slow process of creating a truly robust body of gun-rights precedent. The cases will build, slowly and deliberately, but they have to start somewhere. Why not start with a law that’s, well, insane?
Note that some of these motivations can overlap. The new sheriff can want to start slowly, for example. But unless the Court does something truly unexpected — like strike down the law by applying an intermediate-scrutiny test that actually helps gun controllers — the outcome of the case will likely be positive for gun rights. The real question is, how positive will it be?
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