On Wednesday, the Supreme Court will hold only one hearing, in a historic case that might settle a lingering constitutional mystery about gun rights. The hearing is scheduled for 70 minutes but probably will run longer. The live audio can be heard at the Quick Links on the Court’s homepage – supremecourt.gov – and on c-span.org/supreme court and C-Span Now App.
New York State Rifle & Pistol Association v. Bruen (The hearing will start at 10 a.m.)
Background: Thirteen years ago, the Supreme Court boldly proclaimed – for the first time since the Second Amendment became part of the Constitution in 1791 – that private individuals have a personal right to have a gun for self-defense. Eleven years ago, the Court made clear that this right operates not only in cases involving federal gun regulation, but also in cases that arise under any state or local law.
But a strange thing happened after that. The Court, in scores of cases, refused repeatedly to fill in the details of how far that right extended and thus how far gun-control laws could go. This left the Nation in something of a constitutional limbo, even as mass shootings multiplied and spread across the nation. The heated cultural controversy was left to play out in hundreds of cases in lower courts, with absolutely no further guidance from the Supreme Court.
A good many of those lower courts trimmed the Second Amendment right, allowing more and more gun-control laws – especially at the state legislative level – to take effect. The National Rifle Association and other gun-rights advocates filed repeated appeals to the Supreme Court, to no avail, deepening the constitutional mystery.
Justice Clarence Thomas embarked on something of a personal crusade, dissenting regularly when cases were bypassed, complaining that the Court was allowing the right created by the Court in 2008 and expanded in 2010 to become a “second-class right,” a “constitutional orphan.”
While the Court had declared, in those two earlier decisions, that the Second Amendment definitely protected the personal right to have a gun for self-defense, it said only that the right existed within the home. Did that mean that carrying a gun anywhere outside the home could be banned? That is the most significant constitutional question about gun rights that remains unanswered
Last year, with Justice Thomas no doubt pressuring his colleagues to end this constitutional mystery, the Court stepped in for the first time. It probably helped that two of President Trump’s conservative nominees, Justices Neil Gorsuch and Brent Kavanaugh, had strengthened the Court’s conservative bloc. The Court agreed to hear a Second Amendment challenge to a New York City ban on transporting a gun outside the home.
It was a narrow case, to be sure, but it seemed that the Court could only decide it by settling whether the Second Amendment traveled with a gun owner outside the home. The Court held a hearing on the case, but then that particular controversy fizzled: New York City lifted its ban, and the Court – over three Justices’ dissents – dismissed the case as no longer a live controversy (“moot,” in legal terminology).
Adding to the mystery, the Court then simply denied review of a sizable list of new cases that had been held, awaiting the outcome of the New York City case. Many of those would have been good test cases but, following its usual practice when it denies review, the Court did not explain its refusal to try again.
Not long after that, the Court’s conservative bloc gained another Justice named by President Trump, Amy Coney Barrett, who replaced the late liberal Justice, Ruth Bader Ginsburg.
Whether the new majority of six conservatives will make a difference on the future of Second Amendment rights remains to be seen. But, last April, the Court voted to review a new case from New York, one that involves a state law that dates all the way back to 1911.
The law regulates handguns, requiring a license for anyone to carry such a gun outside the home. To get such a license, one must convince the authorities that the individual has a “proper cause” for carrying a gun. That phrase is not defined in the law, but the lower courts have interpreted it to mean that a mere desire to have a gun for self-protection is not enough. What is required, those courts have said, is that the individual seeking to carry the gun outside the home must show “a special need for self-protection.”
Those standards, gun-rights advocates say, have meant that licenses were denied even for persons who live in a high-crime area and for individuals who have been subjected to a violent threat, if there was only a single threat as opposed to multiple threats. Individuals who received licenses to hunt with guns have been denied a license to carry a handgun for self-defense, the challengers say.
Two individuals who were denied licenses that they wanted to carry for self-defense in public, joined by a gun-rights group, the New York State Rifle & Pistol Association, challenged the state law in federal court, and lost. The lower courts found that the two men did not face “any special or unique danger.”
The question before the Court:
This case is somewhat unusual because the constitutional question that the Court agreed in April to review is not the one that the challengers posed in their appeal to the Justices. In a very real sense, that has created a new mystery about what the Court’s intentions are.
The appeal sought to turn the case into a test of the broad question the Court so far has left unanswered: do Second Amendment rights to have a gun for self-defense extend beyond the home?
But, using its prerogative to define what it will consider, the Court granted review only of this question: Did the denial of a license to these individuals to carry a gun for self-defense violate the Second Amendment?
It would appear that this re-phrasing was intended, in some way, to narrow the scope of the Court’s review. Did the Court intend to focus only on the reasons given these two individuals for denying them a license, without regard to the potentially wider impact of a law like New York’s? Could it decide that limited question without having to declare that, in fact, the Second Amendment right applies outside the home as well as inside? How much guidance would a narrow ruling in this case provide to lower courts, to Congress and to legislative bodies at the state and local level?
It is clear, from almost a generation of the Court’s handling of the Second Amendment, that it has intended to be very cautious, to let the constitutional dimensions of that right be worked out — one case at a time — in lower courts. But what ultimate purpose does the caution serve? Only the Supreme Court can give a definitive interpretation of the scope of the Amendment, so what might it be waiting for?
Significance: Because the Court has done so little about the Second Amendment since launching the personal right to have guns, any time it agrees to decide anything is important and, potentially, significant. Gun-rights advocates will be pressing for a decision that sweeps widely, while gun-control advocates will be seeking just the opposite, leaving larger constitutional questions for later. How the hearing goes on Monday will provide the first hints of how the Court may react.
The Supreme Court will resume hearings next Monday, examining a case on the federal government’s power to prevent disclosure of information about secret electronic surveillance, and a case on the issue of fraud in registering copyrights. They will be discussed in this space in advance of the hearings.