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U.S. Supreme Court & the 2nd Amendment: 2020

During the final days of June each year, the U.S. Supreme Court announces its remaining decisions for the annual term that runs from October through June.  For those interested in gun law and policy, the big news from the nation’s highest court is… no news at all.  

On December 2, 2019, the Court heard oral arguments in the case of New York State Rifle and Pistol Association v. City of New York.  Gun owners challenged a restrictive New York City law that limited their ability to transport firearms to a second home or shooting range outside of the city.  On April 27, 2020, the Court issued its decision in the case.  To the disappointment of the gun owners who initiated the legal action, the Court dismissed the case as moot.  Prior to the December oral argument, the State of New York and the City of New York had changed their laws to permit the requested ability to transport firearms and thus there was no longer a “live” legal dispute.  Gun owners’ associations were disappointed because they hoped that the case could serve as a vehicle for the Supreme Court to expand the definition of gun rights under the Second Amendment.  Indeed, three justices (Clarence Thomas, Samuel Alito, and Neil Gorsuch) dissented from the dismissal of the case as they wanted the Court to use this case to reexamine and broaden the Second Amendment.  A fourth justice (Brett Kavanaugh) agreed that this case should be dismissed but expressed the hope that the Court would soon accept another case to reexamine gun rights.

The aforementioned justices do not disguise their desire to interpret the Second Amendment in ways that further limit the ability of cities, states, and the federal government to enact gun control laws.  A five-vote majority on the Supreme Court can control the outcome on any issue.  If any of the other five justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elana Kagan, John Roberts) were to die, retire, or resign and be replaced by a justice who was eager to reexamine and expand the Second Amendment, we could see new judicial definitions of gun rights.

On June 15, 2020, the Supreme Court declined to accept for hearing during its October 2020 to June 2021 term any of the ten gun rights cases presented to it that challenge existing gun control laws.  These laws in various states do such things as limit the ability to carry guns outside of the home, gain concealed-carry licenses, and own semi-automatic rifles with high-capacity ammunition magazines.  It only takes the votes of four justices to accept a case for hearing.  Observers speculate that not all of the four justices interested in reexamining the Second Amendment voted to select any of these cases for hearing because they know that, with the Court’s current composition, the gunowners will lose their challenges.  These justices may wish to avoid setting any additional legal precedents that limit the definition of the Second Amendment.  Under such circumstances, justices who are eager to see changes in constitutional law often wait until the Court’s composition changes before voting to hear a case that could advance their preferred definitions of law and policy.

As a result, the definition of the Second Amendment right remains in the same limited formulation produced by narrow 5-to-4 majorities in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010).  As formulated in the Heller majority opinion by the late Justice Antonin Scalia, the Second Amendment grants to law-abiding adults the constitutional right to keep an operable handgun in the home for self-protection.  Justice Scalia’s opinion also explicitly acknowledged that governments have the authority to regulate various aspects of firearms ownership, possession, and sales:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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.

The bottom line:  The essential legal meaning of the Second Amendment remains the same as it has for the past dozen years.  Contrary to the claims of those who say that the Second Amendment gives them a right to own any kind of firearm and carry firearms anywhere that they wish, the ability to own various kinds of firearms and carry them in public stems from policy decisions by legislatures, not constitutional rights.  Thus, we can continue to study, discuss, and educate others about a wide array of policy ideas and legislative proposals that will best serve society in the effort to limit gun violence.  In doing so, we do not threaten the actual limited legal meaning of the Second Amendment right.

—Christopher E. Smith, J.D., Ph.D.