Armed demonstrators attend a rally in front of the Michigan state capital building to protest the governor’s stay-at-home order on May 14, 2020 in Lansing, Michigan.
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The Supreme Court is looking eager to weigh in on the Second Amendmentweeks after it punted on its first substantial gun rights case in nearly a decade.
Ten different guns cases were on the agenda of the justices’ private conference on Friday, where they met to decide which cases they will hear in the upcoming term.
Each of those cases has been considered at one previous conference, a clear signal that there is “serious interest” in hearing them, according to John Elwood, a leading court observer and a partner at the law firm Arnold & Porter. It is possible the court could announce as soon as Monday that it will hear one or more of the cases. If it does so, a decision would be expected by the end of June 2021.
“There’s no question that there are a number of justices who are itching to take another gun case soon, and to almost certainly push for a vast expansion of the Second Amendment in a way that has never been countenanced in American history or law before,” said Jonathan Lowy, the chief counsel at the anti-gun violence group Brady.
“The only question is: How many justices are in that group, when are they going to take that case, and what case are they going to take?” he said.
The Friday conference came just a few weeks after the Supreme Court broke its 10-year silence on guns in a case over a since-repealed New York City handgun regulation. The court avoided a substantial ruling in the case for technical reasons. Yet three of the court’s conservatives — Justices Samuel Alito, Neil Gorsuch and Clarence Thomas — wrote they would have sided with the gun owners who were challenging the law.
Justice Brett Kavanaugh sided with the court’s majority, but urged his colleagues to take up the issue again “soon,” noting that there were “several Second Amendment cases” in the pipeline.
It only takes four justices from the nine-member panel to vote to hear a case. Given that arithmetic, activists on both sides of the Second Amendment debate are virtually certain that the battle over gun rights will heat up at the Supreme Court when its next term begins in October.
High political stakes
The fight over the reach of the Second Amendment has been a constant battle in U.S. politics for years, but has taken on new significance amid the coronavirus pandemic as heavily armed protesters in Michigan and elsewhere protest stay-at-home orders.
Former Vice President Joe Biden, the apparent Democratic presidential nominee, has made fighting gun violence a centerpiece of his campaign against President Donald Trump, who has cultivated close ties with gun rights groups like the National Rifle Association.
The gun cases the court could take up involve a smattering of issues including whether individuals have a right to carry handguns outside the home for self defense and if states can ban assault weapons or high-capacity magazines.
Federal appeals courts have consistently upheld bans on high-capacity magazines and assault weapons, according to the Duke Center for Firearms Law, though they have split on whether states can require individuals to show “good cause” to obtain a public carry permit. Most have said such regulations are permissible.
The Supreme Court has largely stayed out of the matter for the past 10 years, last addressing the Second Amendment in a pair of landmark cases in 2008 and 2010.
Those cases established that the Second Amendment protected the individual right to keep guns in the home. Since then, the court has refused every Second Amendment appeal that has come to it, with the exception of the New York case it decided in April.
Eric Tirschwell, the managing director for Everytown Law, an anti-gun violence group, said that it’s most likely that the court will take up one of the cases it’s considering about public carry permits.
He said he was optimistic that a majority of the court would reject the “extreme” positions taken by the NRA and other gun rights groups.
“From what he current justices have written on the Second Amendment, it is far from clear that there is a majority of five votes in favor of this extreme view of the Second Amendment,” Tirschwell said. “Chief Justice John Roberts is certainly a big, if not the biggest, question mark.”
A spokesperson for the National Rifle Association said the group is supporting three of the cases being discussed at Friday’s conference, including two over public carry laws and one on assault weapons and high-capacity magazines.
Public carry and assault weapon laws
The two challenges to public carry laws come in response to a New Jersey law that requires individuals to show a “justifiable need” before obtaining a permit to carry a handgun outside the home and a Maryland law that requires a “good and substantial reason” for such a permit.
Paul Clement, who served as solicitor general under President George W. Bush, wrote in a filing asking the top court to consider the Maryland law that such regulations are “categorically unconstitutional.”
“There is no Second Amendment question more pressing than whether the fundamental right that the amendment guarantees is confined to the home,” Clement, now a partner at the law firm Kirkland & Ellis, told the justices.
The third challenge is against a Massachusetts law that bars “assault weapons” and magazines capable of holding more than 10 rounds of ammunition or more than five shotgun shells.
It’s not clear how the court will come down on the issues if the justices agree to hear one or more of the cases, though gun rights activists appear to have the upper hand. The top court has a 5-4 majority of Republican appointees. Roberts, the likely swing vote, was in the majority of both of the court’s 2008 and 2010 Second Amendment cases.
If the court takes up another Second Amendment dispute, the move is likely to set off another round of fighting over the issue among lawmakers.
In August, five Democratic senators led by Sen. Sheldon Whitehouse, D-R.I., slammed the court over its perceived friendliness to the gun lobby in an unusual friend-of-the-court brief that accused the court’s conservatives of being too cozy with the NRA.
“Out in the real world, Americans are murdered each day with firearms in classrooms or movie theaters or churches or city streets, and a generation of preschoolers is being trained in active-shooter survival drills,” the senators wrote. “In the cloistered confines of this Court, and notwithstanding the public imperatives of these massacres, the NRA and its allies brashly presume, in word and deed, that they have a friendly audience for their ‘project.'”
The Democrats also suggested that if the court did not improve its public image, it could be “restructured,” a seeming reference to various court-packing plans that have been floated by progressives.
That apparent threat inspired Senate Majority Leader Mitch McConnell, joined by the rest of the Republicans in the Senate, to reject the Democrats’ brief in a follow-up letter to the justices.