Many are asking: Now what for the U.S. Supreme Court and the Second Amendment?
It has now been a decade since the U.S. Supreme Court ruled, in McDonald v. City of Chicago (2010), that the Second Amendment restricts state and local governments from infringing on our right to keep and bear arms. This followed the 2008 Heller decision, which confirmed that the Second Amendment protects an individual right, independent of service in an organized militia. McDonald is the most recent case in which the high court has analyzed a firearm regulation under the Second Amendment.
By punting on New York State Rifle & Pistol Association v. City of New York on April 27—this after years of passing on other important Second Amendment cases that lower courts had disagreed on—the court is causing a lot of frustration and speculation.
First, as Amy Swearer writes at The Daily Signal, “This outcome is certainly disappointing to Second Amendment advocates, many of whom thought that if the court was going to dismiss the case as moot, it should have done so much earlier, allowing time to grant and hear another Second Amendment case this term.”
By waiting another six months to call this case “moot,” the court dashed any chance that it might hear another Second Amendment case in this term. Now, if the justices grant certiorari to another Second Amendment case, the earliest it could be heard would be October.
Still, there are a number of Second Amendment cases that the justices could opt to hear.
This week several other Second Amendment cases were actually moved to conference in the high court. This means that the justices should soon discuss whether to hear them.
Though New York State Rifle & Pistol Association v. City of New York clearly asked important constitutional questions, the suit’s central complaint that residents of New York City who have “premises licenses” could not take their guns out of the city concerned a very unusual, if not totally unique, regulation. Even then, New York City and the state legislature gave the justices an off ramp by amending their laws, supposedly to grant the relief the plaintiffs requested. This gave the justices a potential way out a majority of them chose to take.
The cases currently being considered for possible hearing by the court, on the other hand, concern laws that more broadly affect the gun-owning population.
Cases like Wilson v. Cook County, Illinois and Worman v. Healey directly challenge bans on popular and commonly owned semi-automatic rifles and magazines—Heller specifically protects “commonly owned” firearms.
Another case, Rogers v. Grewal, challenges laws preventing law-abiding citizens from carrying a firearm outside their home for self-defense. This takes on the “special need” requirement that places like New Jersey and California use to deny citizens their basic Second Amendment rights.
And then there’s Pena v. Horan, which challenges California’s “Unsafe Handgun Act,” a law that implicates the Second Amendment by effectively banning commonly owned handguns.
The justices on the U.S. Supreme Court clearly have many solid options to step in and protect their precedents—Heller and McDonald.Justice Brett Kavanaugh said they should do just that. In a concurring opinion to NYSRPA v. NYC, he stated, “I share JUSTICE ALITO’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”