The nation’s highest court on Monday was poising itself to consider a list of ten appeals that would expand constitutional gun rights — something the Supreme Court has angered gun rights advocates by simply refusing to do for the last ten years. The newest Justice on the bench, Brett Kavanaugh, last month voiced his support for gun rights in a written opinion responding to New York City officials’ attempts to restrict gun owners from traveling with their firearms. Kavanaugh has now called on the court to schedule a new Second Amendment case soon, and the conservative-leaning bench may just tip the scales in favor of the Second Amendment.
The first appeal seeks a nationwide right to carry a handgun in public, something states with draconian gun laws have long sought to prevent and criminalize. Five states and one territory — California, Florida, Illinois, New York, South Carolina, and Washington, D.C. — currently prohibit people from openly carrying handguns in public places. While 31 states allow open carry, others (including Massachusetts, New Jersey, Rhode Island, and Maryland) require licensing to exercise this basic 2A right. Those states’ permitting processes for public carry are considered “may-issue”, meaning the individual requesting a permit to carry must illustrate a specific need for having a permit.
In addition to the public carry appeal, two cases call for the constitutional right to own a semiautomatic “assault weapon. ” While assault weapons are fully automatic and issued only to military and police personnel, left-leaning lawmakers often incorrectly label semiautomatic weapons like the AR-15 as assault weapons. Nonetheless, the appeal would include weapons like the AR-15 in the definition of protected firearms. This is big news for Second Amendment rights: If the appeal is heard by SCOTUS and the justices rule in favor of this ownership as a Constitutional right, it would not only bar states and locales from banning weapons like the AR-15 it would effectively dismantle the existing bans placed on America’s most-bought and -owned rifle for good. States like New York, New Jersey, and California, which have long sought to remove the AR-15 and other semiautomatics from citizens’ homes and gun stores’ shelves entirely, would have little legal ground to stand on.
Other appeals would tackle state-level legislation that has already restricted gun rights, like California’s new gun-safety law and the federal ban on direct interstate gun sales. If reviews of the appeals are granted by the Court, the arguments will probably be heard in November, just after the presidential election. That makes embattled President Trump’s position on gun control a particularly heated topic in a fervent and polarizing election cycle.
Gun rights advocates who have watched the Supreme Court dodge gun rights issues are already preempting any hesitation by the court to again avert its duties to the Constitution. “They just need to step up and make a choice,” said Erik Jaffe, a Washington appellate lawyer who often argues on the side of gun rights. “Are they or are they not actually going to treat the Second Amendment as a constitutional right?”
The court hasn’t issued a major gun rights ruling since 2010, when it said the Second Amendment applies to states and cities, as well as the federal government and the District of Columbia. That followed a 2008 ruling that for the first time said people have a constitutional right to keep a handgun at home for self-defense purposes. Still, gun rights advocates may have reason to be hopeful. The right-to-carry issue has long been left to appellate courts and individual states to determine often-unconstitutional restrictions. Yet a federal appeals court in Washington, D.C. threw out the district’s requirement that residents show a “good reason” to get a carry permit. This new precedent, which gives added steam to the 2A engine now chugging toward the Supreme Court, has anti-gunners worried.
Of course, the Court may also consider just how much mettle it has for firearms appeals in an election year filled with controversy. “One thing that the justices might be considering is their appetite for a highly charged issue right now,” said Eric Ruben, a professor who focuses on the Second Amendment at Southern Methodist University’s Dedman School of Law. “The public-carry cases and the assault weapons cases are more polarizing than the federal ban on selling handguns directly to out-of-staters.” On the issue of assault weapon bans, the Court would be diverging from precedents set by numerous federal appeals courts if it were to rule in favor of the right to ownership, too: Every lower court to consider the issue in various states has upheld bans on those types of firearms.
A potentially less divisive appeal challenges the federal law that bars dealers from selling handguns directly to people in other states. A Texas gun dealer is seeking to sell handguns to two District of Columbia residents without having to use a middleman who charges $125. The Supreme Court also could agree to hear a challenge to a California law that critics say effectively bans the sale of new handgun models. The law requires new handguns to create a microscopic stamp on each fired shell casing to indicate the make, model and serial number of the weapon. The challengers say that provision is so demanding that no manufacturer can meet it.
Yet the winds have already changed direction in the Supreme Court. Many Justices on the bench have not only grown tired of not ruling on gun rights, they’ve made it quite clear. “As evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this court,” Justice Clarence Thomas wrote in 2018. Justices Thomas, Kavanaugh, Samuel Alito and Neil Gorsuch have all said they would have ruled in the New York travel-ban case.
“The Supreme Court has control over its docket, so there’s really no guarantee that they accept any of the pending Second Amendment cases,” Ruben said. “But there certainly are plenty of indications that a number of the justices want to accept another Second Amendment case.”