The First Major second amendment case to reach the Supreme Court 

The First Major second amendment case to reach the Supreme Court

The Supreme Court announced last January that it would hear New York State Rifle & Pistol Association Inc. v. City of New York, the first major second amendment case to be heard by the Supreme Court in almost a decade’s time— and also the first since the retirement of Justice Anthony Kennedy dramatically shifted the Court to the right.

The case centers on an unusual — and recently changed — New York City rule that limited where gun owners with a certain kind of permit were allowed to bring their guns.

Gun control advocates, including policymakers in both New York City and the New York state legislature, fear a big loss in the Supreme Court and are desperate to make the case go away. Indeed, New York City changed their gun rules after the Supreme Court announced it would hear the case, and state legislators enacted a new law forbidding the city from bringing back the old rules — all in the hopes of obviating the need for the Court to weigh in. Because the legal controversy between the city and the plaintiffs is now over, the city asked the Court to dismiss this case as moot.

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New York State Rifle, in other words, is of two-fold importance. It is important because the Supreme Court’s current majority is likely to expand the scope of the Second Amendment significantly if they decide the merits of this case. But it is also important because the debate over whether to dismiss this case will offer a window into the psychology of the Court’s Republican majority.

A few months before his death this summer, retired Justice John Paul Stevens offered a surprisingly candid window into the Court’s internal deliberations.

In its 2008 decision in District of Columbia v. Heller, the Supreme Court held for the first time that the Second Amendment protects an individual right to bear arms. The Court split along familiar ideological lines, with Kennedy joining his fellow conservatives in the 5-4 majority.

Heller, as mentioned above, was the first Supreme Court case in American history to hold that the Second Amendment protects an individual right to own firearms. Since Heller, moreover, the Court’s only handed down one significant Second Amendment opinion. And that 2010 opinion, in McDonald v. City of Chicago, merely held that states must comply with the same Second Amendment regime as the federal government.

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The Supreme Court’s Second Amendment jurisprudence, in other words, is underdeveloped. In Heller, the majority basically hit a reset button that wiped out the Court’s prior Second Amendment decisions, which held that the “obvious purpose” of this amendment was “the preservation or efficiency of a well regulated militia,” not an individual right to bear arms.

Kavanaugh, for his part, rejects this consensus framework altogether. In his 2011 dissent, he argued that the consensus view should be abandoned for a different test — “courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” While it’s unclear how Kavanaugh’s test would apply in every individual case, the fact that Kavanaugh took a position well to the right of his two Republican colleagues strongly suggests that his test would invalidate more gun laws than would the consensus framework.

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