The first gun rights case at the U.S. Supreme Court in a decade looks like it might get tossed on a procedural hiccup, but questions raised at argument Dec. 2 about the heightened standard of scrutiny that gun rights advocates would like to see for gun regulations preview what the court’s next Second Amendment case could look like.
By taking an off ramp in the current case, the justices could delay putting the court in the middle of a highly charged political issue until after the 2020 elections, where Republicans’ stance on gun regulations threatens to hurt their chances with suburban voters as mass shootings continue to grab the public’s attention.
But the court wouldn’t have to wait long to revisit gun rights.
It “seems likely the Court will take up another Second Amendment case next term, regardless of what happens” in the current case on a repealed New York City gun control law, said Second Amendment scholar Adam Winkler of the University of California, Los Angeles.
Since the Supreme Court’s seminal rulings in District of Columbia v. Heller in 2008 and McDonald v. City of Chicago in 2010, lower courts have overwhelmingly upheld gun regulations using some version of intermediate scrutiny, Winkler said.
The Supreme Court has declined to clarify a standard for evaluating gun regulations since deciding in those landmark cases that there is a right to own a gun for self-protection in the home.
Its unwillingness to address the scope of gun rights just goes to show how fragile constitutional rights can be, said Second Amendment scholar Joyce Lee Malcolm of the Antonin Scalia Law School at George Mason University.
That’s why Kirkland & Ellis attorney Paul Clement urged the justices on Dec. 2 to decide the merits of New York State Rifle & Pistol Association v. City of New York despite claims that the case is now moot.
Doing so “would send a very important signal to the lower courts” about the proper way to scrutinize gun regulations, Clement argued on behalf of several plaintiffs challenging a now-defunct regulation restricting where lawful gun owners can take their firearms.
He described the test the lower courts use as a “one-way ratchet” that works in favor of those supporting strong gun regulations and against those supporting robust gun rights.
Everytown for Gun Safety advocates for universal background checks and other gun control measures. Bloomberg Law is operated by entities controlled by Michael Bloomberg, who serves as a member of Everytown for Gun Safety’s advisory board.
The challenged New York City regulation was amended after the Supreme Court agreed to review a lower court ruling upholding the law.
The justices focused almost exclusively on mootness during arguments.
And while it can be hazardous to predict how the justices will rule, Winkler said it looks like there may be at least five members, Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, who think the change in law has mooted the case.
But Clement still managed to squeeze in some harsh words for how lower courts have applied Heller.
The court should use the New York City case as an opportunity to make clear that “when a regulation like [New York City’s] is inconsistent with text and has no analogue in history or tradition, it is unconstitutional, full stop.”
“The way the lower courts have interpreted Heller is like text, history, and tradition is a one-way ratchet,” Clement said. “If text, history, and tradition sort of allow this practice, then they’ll uphold the law. But if text, history, and tradition are to the contrary, then the courts proceed to a watered-down form of scrutiny that’s heightened in name only,” he said.
There’s a “sort of asymmetry where [courts] find that history and tradition can give a thumbs up to a law but not a thumbs down,” said Justice Department lawyer Jeffrey Wall, who argued on behalf of the United States in support of those challenging the New York law.
That kind of standard of review ignores the plain language of Heller, Malcolm said.
Justice Sonia Sotomayor wasn’t convinced. “This seems sort of a made-up new standard,” she said in response to Wall’s suggestion of asymmetry on behalf of lower courts.
First of Two Steps
Winkler agreed that, for “the most part, the lower courts have agreed that the appropriate test to apply in Second Amendment cases is a version of intermediate scrutiny.”
And that’s the way it should be, said Washington University School of Law in St. Louis constitutional law professor Gregory Magarian.
“The Roberts Court has made clear that it believes history and tradition are the most important guides to a law’s constitutionality,” he said.
Lower courts therefore ask whether the tradition and history of the Second Amendment permits or forbids a particular gun regulation, Magarian said.
But that’s just the “first step in a two-step 2A test,” he said.
If history and tradition show that a “challenged law denies a right protected by the” Second Amendment, then the court must still weigh the Second Amendment rights of citizens with the government’s interest in public safety, Magarian said.
Justice Samuel Alito, however, wondered during arguments if such a standard was always appropriate.
What if the history is clear that such restrictions aren’t constitutional, Alito asked New York City attorney Richard Dearing. Is that “the end of the question? There’s no resort to some level of scrutiny?” Alito asked.
Dearing responded that that could be the case, in rare situations like Heller, where the history was clear.
But “in a significant number of cases, history doesn’t speak so clearly,” Dearing said. In those cases, “the most reliable method of answering the question” will be to subject the regulation to a certain level of scrutiny.
Waiting in Wings
The “justices do not need to step back into the Second Amendment fray given the near uniformity of lower court decisions on the standard of review,” Winkler said. Circuit splits, where federal appeals courts disagree on a legal issue, is a common reason for the Supreme Court to take up a case.
But “there are numerous cases waiting in the wings” if they have the appetite to do so, he said.
Winkler identified concealed carry permits as a likely candidate for the court’s next foray into gun rights.
Currently there are several petitions pending at the high court challenging state schemes related to carrying guns outside of the home—concealed or otherwise—including in Maryland, New Jersey, Illinois, Massachusetts.
Several others challenge state laws banning interstate gun sales, requiring so-called microstamping,—that is, requiring a gun to “stamp” certain information on to each bullet it fires—as well as other state regulations.
Just about any Second Amendment case “would allow the Court to opine on the proper form and/or level of scrutiny,” Magarian said.
“It may only be a matter of time before the Court expands the scope of the Second Amendment and makes it harder for lawmakers to enact meaningful gun reform,” Winkler said.