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Supreme Court Gun Record Is Sparse Ahead of Likely Rights Expansion

June 21, 2022, 8:45 AM

The US Supreme Court is ready to rule on the lawfulness of carrying guns outside the home in New York Rifle & Pistol Association Inc. v. Bruen.

Supreme Court jurisprudence on the right to bear arms is brief with long spells between decisions. The Second Amendment was long interpreted as applying federally, not to the states. The most recent cases decided by the court more than a decade ago were a turning point, and set up the now enlarged conservative-majority to likely expand gun rights.

LISTEN: Supreme Court Gun Case to Set Gun Control’s Future

The following is a look at how we got here.

The Second Amendment was adopted as part of the Bill of Rights in 1791 and states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

United States v. Cruikshank: The 1876 decision stemmed from a massacre of Blacks following armed conflict with a white militia in Louisiana during Reconstruction. The landmark ruling was said to have undercut post-Civil War powers of the US government to protect civil rights, ultimately leaving it up to the states and empowering white supremacy. In vacating convictions of white defendants for depriving Blacks of their right to keep and bear arms, the court found the Second Amendment only applied to the US government.

Presser v. Illinois: The 1886 decision grew out of a march in Chicago of an unlicensed armed citizen militia. The court held that a state prohibition against such groups didn’t infringe on the right to keep and bear arms in again declining to apply the Second Amendment to the states.

United States v. Miller: The 1939 decision overturning a district court said the National Firearms Act didn’t violate the Second Amendment. The case involved New Deal-era bank robbers charged with unlawfully transporting an unregistered sawed-off shotgun from Oklahoma to Arkansas. The court found that the type of weapon involved bore no relationship to the preservation of a well-regulated militia, and was not protected under the Second Amendment.

District of Columbia v. Heller: The landmark 2008 decision struck down a Washington, DC, handgun ban. The court said the Second Amendment protects individual gun rights unconnected with militia service, and endorsed their lawful possession for self-defense in the home. Current court conservatives Chief Justice John Roberts, and Justices Clarence Thomas and Samuel Alito signed onto the decision by fellow conservative, the late Antonin Scalia. Justice Stephen Breyer, today a liberal member of the court in his last term, dissented.

McDonald v. Chicago: The 2010 decision struck down Chicago’s handgun ban, finding that Heller applied to individual states, not just federally. What wasn’t decided in the opinion written by Alito was whether the Second Amendment applied to gun ownership outside the home. Roberts and Clarence Thomas were the other members of the current court who comprised the majority.

Solid Majority: Since Heller and McDonald, lower courts have struggled to sort out what regulations governments could put on gun ownership. The Supreme Court mostly avoided the Second Amendment despite Thomas urging them to weigh in. Then Amy Coney Barrett replaced the late Ruth Bader Ginsburg in October 2020, giving Thomas and his fellow conservatives a 6-3 court majority to comfortably proceed.

Why Bruen? The court passed on appeals in 2020 over carry laws in New Jersey, Massachusetts and Maryland even though the limits created a split among federal appeals courts. Although the justices rarely say why they take up a case, the timing of Bruen fit with the blockbuster composition of the term. Circuit splits coupled with the strengthened conservative majority’s interest in providing guidance on the Second Amendment’s reach outside the home, and the specific challenge raised in Bruen over New York’s sharp restriction on granting concealed carry licenses set up the four votes need to grant review in April 2021.

Bloomberg Law is operated by entities controlled by Michael Bloomberg, who serves as a member of Everytown for Gun Safety’s advisory board.

—With assistance from Jordan Rubin and Greg Stohr

To contact the reporters on this story: John Crawley in Washington at jcrawley@bloomberglaw.com; Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; Tom P. Taylor at ttaylor@bloomberglaw.com