Editors’ Note: Reprinted from The New York Times, January 30, 2019.
An obscure New York City gun case could tempt the justices to make broad pronouncements about a right they haven’t addressed in a decade.
Is there a more enigmatic and oddly phrased passage in the Constitution than the Second Amendment?
A well-regulated militia” — there’s no consensus on what this meant 200 years ago, much less now — “being necessary to the security of a free state” — were the framers talking about collective defense or self-defense? — “the right of the people to keep and bear arms” — bear arms like a soldier? — “shall not be infringed.
Yet, despite serious questions about the breadth of the amendment’s protections, at least four Supreme Court justices seem ready to consider what had until recently been a maximalist position: that it guarantees Americans a broadly unrestricted right to gun ownership.
For 217 years, the opacity of the Second Amendment kept the Supreme Court from affirming that its text gave Americans as individuals, not as militia members, the right to have a gun. Former Chief Justice Warren Burger called that claim “one of the greatest pieces of fraud … on the American public by special-interest groups that I have ever seen in my lifetime.”
The con seemed to have worked. In 2008 and then in 2010, the court ruled that, within certain limits, the government could not prohibit people from having handguns in their homes for self-protection, declaring that the amendment guaranteed that right for Americans as individuals.
Since then, many on the right, including some justices, have been frustrated that the court has repeatedly refused to go further in expanding Second Amendment rights or at least clarifying the legal standard for assessing new gun control measures.
In dissenting from the court’s refusal to review a lower-court ruling that permitted an Illinois city’s ban on semiautomatic firearms and high-capacity magazines, Justice Clarence Thomas wrote in December 2015 that the justices were “relegating the Second Amendment to a second-class right.”
The arrival of Justice Brett Kavanaugh last year may have shifted the balance on the court in Justice Thomas’s favor. Replacing Justice Anthony Kennedy, who was more willing to accept limits on gun rights, and who may have played a role in moderating Justice Antonin Scalia’s 2008 decision in District of Columbia v. Heller, Justice Kavanaugh joins other justices who have expressed absolutist views on the Second Amendment — Justice Thomas, Justice Neil Gorsuch and Justice Samuel Alito Jr. In 2011, then-Judge Kavanaugh, serving on an appellate court, wrote a dissent in a follow-up case to Heller that signals his views. That ruling upheld a ban by Washington, D.C., on semiautomatic rifles and a separate gun registration requirement — in Judge Kavanaugh’s view, those provisions were unconstitutional and should not have been enforced.
Last week the court agreed to hear a case from New York City that would, for the first time in a decade, allow the justices to decide whether the right to bear arms is, as Justice Thomas complained last year, a “constitutional orphan.”
On the surface, the case, which the justices will hear in the session that begins in October, seems inconsequential. Three New Yorkers, backed by gun rights groups, are challenging an administrative rule that permits people with a license for a gun on a particular premise, like the owner’s home, to take it only to one of the seven shooting ranges in the city. That means no trips to shooting ranges or vacation homes upstate or across the Hudson to New Jersey.
The city told the justices that the rule, which predates the Supreme Court’s Heller decision, was needed because authorities had received reports that licensed gun owners were abusing their privileges — traveling beyond city limits or designated shooting ranges, sometimes with loaded firearms, posing a risk to public safety.
Could the Supreme Court’s conservative bloc use the case to declare that a gun owner has a constitutional right to carry a handgun anywhere outside the home, sensible limits be damned? Chief Justice John Roberts Jr. has, at times, played the role of centrist, and he may turn out to be a moderating force in keeping that from happening.
But the case could also significantly broaden gun rights, smack in the middle of the 2020 election campaign. This seemingly minor case shows that even moderate gun safety measures are at risk.