The Supreme Court on Monday will hear arguments in a potentially landmark Second Amendment case, the first time in roughly a decade that the justices will consider gun rights.
At issue is a New York City handgun regulation that put tight limits on licensed gun owners’ ability to transport firearms outside the home. The case presents the justices an opportunity to go further than ever before in defining the scope of the individual right to bear arms.
“The big question is whether the conservative justices want to use this case — which features an arguably extreme and silly form of gun control — as a vehicle for expanding Second Amendment rights and further constricting governmental options for meaningful gun control,” said Carl Bogus, a law professor and Second Amendment expert at Roger Williams University.
This latest chapter in the nation’s long-running debate over Second Amendment rights has drawn in familiar interest groups. It has also intensified the political fight over the high court’s future, with Senate Democrats warning about a rightward shift under President Trump.
The plaintiffs are three licensed handgun owners who sued New York City for, among other things, infringing on their constitutional right to bear arms. They are backed by the National Rifle Association (NRA) as well as an NRA-associated firearms advocacy group, the New York State Rifle and Pistol Association, which is also a plaintiff.
In the spring of 2013, the three New York City men sued the city over its handgun licensing scheme. Under the ordinance, residents could apply for a “premises” license, which allowed for the possession of a handgun in the home. Outside a gun owner’s specified address, however, the law granted few rights.
Gun owners could carry their firearms to about a half-dozen authorized shooting ranges in New York City. Even transporting a gun to a second home outside the city was forbidden. Guns also had to be unloaded and locked in a container during transport.
The lawsuit arose after the city denied the men’s request to travel with their handguns outside the city to participate in target practice and marksmanship contests. The district court sided with New York City, as did the U.S. Court of Appeals for the 2nd Circuit. The Supreme Court in January granted the gun owners’ petition for an appeal.
The decision to take up the first major gun rights case in years alarmed some Democrats who fear the court, with two Trump nominees, is poised for a rightward shift.
In an unusual move, five Democratic senators filed a sharply worded amicus brief in support of New York City. In it, they suggested that a win for the NRA and gun rights advocates would raise questions about the court’s legitimacy.
“Indeed, petitioners and their allies have made perfectly clear that they seek a partner in a ‘project’ to expand the Second Amendment and thwart gun safety regulations,” wrote Sen. Sheldon Whitehouse (D-R.I.), the lead author of the brief, which implored the justices not to expand gun rights. Sens. Mazie Hirono (D-Hawaii), Richard Blumenthal (D-Conn.), Dick Durbin (D-Ill.), and Kirsten Gillibrand (D-N.Y.) also joined.
Eric Freedman, a law professor at Hofstra University, said the Senate Democrats’ unusual warning to the court’s conservative bloc has fueled suspicions that “the law is being bent to politics,” and he questioned how the court would react.
“That is a perception that [Chief Justice John] Roberts, [Justice Brett] Kavanaugh and, perhaps more surprisingly, [Justice Clarence] Thomas may be eager to dispel,” he said. “Keep an eye on them.”
The case also poses a complicated legal question for the justices.
Freedman and other court watchers say it’s a very real possibility the justices choose to sidestep the Second Amendment question altogether. That’s because New York City and the state of New York changed their gun laws between the lawsuit’s initial filing in 2013 and this week’s Supreme Court oral arguments.
“The New York regulation, which was unique to begin with, has already been repealed and replaced with a state law, which seems to render the case entirely moot,” said Joseph Blocher, a law professor and Second Amendment expert at Duke University. “Ruling the regulation unconstitutional literally changes nothing in the larger landscape of gun laws.”
But if the justices do decide to address the Second Amendment issue head on, Blocher said, the impact could be felt across the country.
“The real question — and the reason that the case is so important — is whether the justices will announce a new test for evaluating the constitutionality of gun laws going forward,” said Blocher, who co-directs the Center for Firearms Law at Duke.
In a landmark 2008 case, District of Columbia v. Heller, the court said the Second Amendment enshrines an individual’s right to keep and bear arms for self-defense. The court decided two years later that right applies at both the federal and state levels.
But the late Justice Antonin Scalia’s decision in the Heller case left key questions unanswered about the scope of the Second Amendment and how courts should determine when those rights were infringed.
Lower courts have filled the gap over the past decade. In more than 1,000 cases decided since Heller, lower courts have generally embraced a two-step test to figure out if a gun control measure passed by a state or city is unconstitutional, according to research by Blocher and co-author Eric Ruben, a law professor at Southern Methodist University.
The test first asks whether the law under review is covered by the Second Amendment and then if the law’s burdens are justifiable in regard to the public interests being served. Courts have effectively used this legal test to strike down overly strict laws but have upheld most mainstream gun regulations.
The Supreme Court now has an opportunity to adopt that standard, modify the test or even generate an entirely new one.
“If the court decides to replace that consensus with some other test, then everything could change,” Blocher said.
The NRA hopes the justices do exactly that. The national gun rights advocacy group told the court in an amicus brief that the judicial test developed in the lower courts is mistaken.
“This approach is contrary to the text and purpose of the Second Amendment — which was enshrined in our Constitution because the People already weighed the competing interests at stake, and solemnly concluded that ‘the right of the people to keep and bear Arms, shall not be infringed,'” the group wrote.
For gun control advocacy groups such as the Brady Campaign to Prevent Gun Violence, the prospect of a new legal standard is cause for concern.
“If [the NRA-backed plaintiffs] are successful, Americans could lose their longstanding rights to enact the public safety laws they want and need to protect their communities,” said Jonathan Lowy of the Brady Campaign.
“The stakes could not be higher.”