Uncomfortable Timing for a Supreme Court Gun Fight

The new New York State Rifle & Pistol Association case challenges the state law that limits most licenses to carry a gun outside the home to those applicants who can show that “proper cause exists.” The statute does not define “proper cause,” and judicial interpretations over the years have defined it narrowly to require something more than a generalized desire to have a gun at hand for self-defense; there has to be something that sets the individual’s circumstances apart from the general public. (New York prohibits “open carry,” with licenses available only for carrying a concealed weapon.) The U.S. Court of Appeals for the Second Circuit affirmed dismissal of the lawsuit on the basis of its own longstanding precedent.

Paul Clement, who since his years as solicitor general during the George W. Bush administration has handled many gun rights cases, wrote in his petition to the court that “the Second Amendment does not exist to protect only the rights of the happy few who distinguish themselves from the body of ‘the people’ through some ‘proper cause.’” Most federal appeals courts have ruled on similar laws as the Second Circuit has, but not all, and disagreement among the lower courts is usually a good predictor of the Supreme Court’s willingness to take up an issue.

By the same token, unanimity in the lower courts is usually a deterrent to Supreme Court review. On Monday, the court turned down three cases challenging a federal law that imposes a lifetime ban on gun ownership on people who have been convicted of felonies and some misdemeanors. The cases were all brought by individuals convicted of nonviolent crimes who argued that the prohibition violated their Second Amendment rights. The cases were of more than usual interest because Justice Barrett, while still a federal appeals court judge, had weighed in on the same issue in an opinion dissenting from a decision that upheld the lifetime ban. The plaintiff in that case was a man convicted of Medicare fraud, a first-time offender with no history of violence.

In her opinion, Judge Barrett wrote that there is no “virtue limitation” to the Second Amendment. Quoting from an opinion by Justice Alito in a separate Second Amendment context, she added that applying a lifetime ban on gun ownership to such a person “treats the Second Amendment as a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’” Her dissenting opinion in Kanter v. Barr is what has encouraged gun rights groups to suppose that they can count on Justice Barrett when the time comes.

The “second-class right” charge is popular among the conservative justices and the gun-rights community. I’ve always been puzzled by the notion that any limitation on the Second Amendment converts it into some sort of second-class right. I can’t think of a constitutional right that the Supreme Court has interpreted as absolutely unlimited — certainly not, for example, the Fourth Amendment’s protection against “unreasonable searches and seizures,” to which conservative judges have attached countless limitations over many years.

Eleven years post-Heller, the decision itself has become more of a symbol and talking point than a legal opinion that people actually take the trouble to read.

If they did, they would see Heller as the limited decision that it was. Yes, it took the unprecedented step of interpreting the Second Amendment as conferring an individual right to own a gun, but the court applied that new right to the unusual circumstance of a District of Columbia law that prohibited private gun ownership. Only the District and Chicago had such a strict law. The court held only that individuals have a constitutional right to own a gun and to keep it at home for self-defense. For the vast majority of people in the country, Heller changed nothing as a practical matter; it constitutionalized a right that gun owners already enjoyed under state and local laws.

Whether the Second Amendment also protects a right to walk down the street, or onto a college campus, or into a supermarket, a warehouse, a State Capitol, or a 12-year-old’s birthday party carrying a gun are questions that Heller did not answer. The current court can answer those questions in the affirmative if it so chooses. It has the votes. We will soon see whether it has the discipline and common sense to stay its hand.

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