For the first time in nearly a decade, the U.S. Supreme Court was scheduled to hear a gun rights case even though those who initially brought the case — New York City gun owners — have already won changes to the regulation they had challenged in a lower court.
The lawsuit in New York began as a challenge to the city’s prohibition on carrying a licensed, locked and unloaded handgun outside the city limits, either to a shooting range or a second home.
Lower courts upheld the regulation, but the Supreme Court’s decision in January to step into the case signaled a revived interest in gun rights from a court with two new justices, Neil Gorsuch and Brett Kavanaugh, both of whom were appointed by President Donald Trump.
Officials at both the city and state level scrambled to find a way to avoid Supreme Court intervention in the matter. Not only did the city change its regulation to allow licensed gun owners to transport their weapons to location outside New York City’s five boroughs, but the state also enacted a law barring cities from imposing the challenged restrictions.
The justices’ insistence to move forward in hearing arguments despite New York City’s and the state of New York’s earlier legal action has gun control advocates fearful that the court’s conservative majority could use the case to call into question gun restrictions across the country.
At the same time, gun rights groups are hoping the high court is on the verge of extending its landmark rulings of 2008 and 2010 that enshrined the right to have a gun for self-defense at home.
The National Rifle Association and its allies have tried for years to get the court to say more about gun rights, even as a growing number of mass shootings and public demands to do something to reduce that growing trend may have caused the justices to shy away from taking on new disputes over gun limits.
Justice Clarence Thomas, for example, has been among members of the court who have complained that lower courts are treating the Second Amendment’s right to “keep and bear arms” as a second-class right.
Kavanaugh voted in dissent when his federal appeals court upheld the District of Columbia’s ban on semi-automatic rifles.
“Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history and tradition are not consistent with the Second Amendment individual right,” Kavanaugh wrote in 2011.
Gun control advocates are concerned the court could adopt Kavanaugh’s legal rationale, potentially putting at risk regulations about who can carry guns in public, limits on large-capacity magazines and — perhaps — restrictions on gun ownership by convicted criminals, including people convicted of domestic violence.
“This approach to the Second Amendment would treat gun rights as an absolute right, frozen in history, and not subject to any restrictions as public safety demands, Hannah Shearer, litigation director at the Giffords Law Center to Prevent Gun Violence, told The Associated Press.
The notion that the first 10 amendments to the Constitution — the Bill of Rights — was a list of “absolutes” was not the approach in 1919 when Justice Oliver Wendell Holmes Jr. wrote “falsely shouting fire in a theatre and causing a panic” is dangerous and false and was not protected free speech under the First Amendment.
We would hope that the Supreme Court would not adopt so narrow a view of the Second Amendment as an absolute right not subject to any restrictions.