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In wake of mass shootings, Supreme Court sits poised to expand gun rights

2nd Amendment case before high court could force lower courts to apply 18th century gun laws to modern society

As the country grapples with the murders of 19 children and two schoolteachers in the deadliest mass shooting of the year, the Supreme Court stands ready to release a consequential ruling on the gun rights that could change how courts evaluate the Second Amendment. 

The Second Amendment protects the right to keep and bear arms. In 2008, the court affirmed this right within one’s home in District of Columbia v. Heller. Now, for the first time in over a decade, the court will decide how that phrasing is applied to carrying guns in public. Specifically, the case before the court challenges New York’s restrictions on qualifications for concealed-carry licenses. When the court heard oral arguments in November, the question appeared to be not whether the conservative justices would expand Second Amendment rights but to what extent. 

New York — and other states like New Jersey and California — have laws that allow licensing authorities to use discretion when issuing licenses to carry a concealed firearm. Experts call these “may” laws because the state may issue a license if the person shows good cause. Other states have “shall” laws that don’t allow licensing authorities to use discretion. Some states — like Texas, where an 18-year-old wielded an assault rifle at an elementary school in Uvalde this week — are abandoning the permitting process altogether. 

“The narrow issue, in this case, is about permitting and how much discretion a licensing authority can exercise in granting a license to carry weapons,” Darrell Miller, a professor of law at Duke Law, said in a phone call. “It used to be that most states had some kind of licensing rules, but very aggressive moves on the part of gun rights organizations and the gun lobby have relaxed that rule in many states.” 

The court has a number of ways to resolve this issue. They could write a narrow opinion that says some forms of discretion are allowed, or they could take a broader view and get rid of that discretion in favor of something more similar to the shall laws. There is also a possibility that the court takes a very expansive view and says all licensing would be unconstitutional. Experts say the latter path would be surprising, however, considering the long history of licensing of concealed firearms. 

“It’s possible, though I think very unlikely, that the court can issue a very broad ruling that says the Second Amendment does not allow states to require licenses for carrying guns in public. And if it said that, it would mean that the 25 states that currently have some licensing requirements for carrying a concealed weapon in public, those laws would also be called into question,” Jacob Charles, the executive director for the Center for Firearms and lecturing fellow at Duke Law, said in a phone call. “But other than the concealed-carry licensing scheme, it’s hard to see a broad enough ruling that would on its own call into question other kinds of laws like assault weapons bans, for instance, or bans on large-capacity magazines.” 

A ruling on the licensing authority of states will be important and no doubt consequential, but experts say the bigger issue is the methodology they use. 

“There’s this other issue that is a potentially huge issue … that not only academics but also legislators and litigants are looking at, which is the question about how do you even go about answering a question about whether something is constitutional or unconstitutional with the Second Amendment,” Miller said. 

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Appeals courts currently use a two-part framework to decide Second Amendment cases. First, courts use a categorical test to decide if the case concerns a Second Amendment issue. For example, if someone goes into a bank with a gun and tells the patrons to give them their wallets, the scenario doesn’t concern the First or Second Amendment protections even though there are aspects of speech and a gun. The second part of the framework asks, if it is a Second Amendment issue, how much protection should be afforded? An example of this would be laws that prevent felons from possessing guns. A court could say that’s not a categorical rule and further examine why certain crimes should prevent someone from owning a gun.

“What the Supreme Court might do in this case — what is certainly is probably going to do — is to say whether that’s right, or whether courts should use a different methodology,” Charles said. “The competing methodology that’s championed by exclusively conservative judges and justices is what’s known as a test of text, history and tradition. That would only look to whether a modern gun law has some kind of analog in American history or tradition, and, if it doesn’t, that’s unconstitutional.” 

This would mean that courts would have to use laws from the 1790s to decide what gun regulations look like in 2022. 

“That gets us into a scenario where all kinds of regulations that have appeared or problems that didn’t exist in 1791, are suddenly thrown into doubt depending on how narrowly or broadly we think about the analog,” Miller said. 

An example of this would be long-standing regulations that trace back to England, which prevented guns in fairs and markets. Courts would have to decide if 1790 markets are comparable to super dome stadiums in modern cities to decide if similar laws can apply. 

But this method would not just be used to decide where guns can be carried, it would also extend to every gun regulation. 

“The issue is not just addressed to this issue about carrying guns, it’s addressed to every regulation, whether we’re talking about what counts is the gun, who can have a gun, where you can carry the gun, how you can control the sale of the gun,” Miller said. “All those issues are up for grabs if the court adopts this text-history-tradition-only approach, and especially if it understands that to be a very narrow kind of rule that says I have to find something that looks almost exactly like this regulation in 1791.”  

The problem that some experts have with this test is that it presents more questions than answers. 

“If you end up doing text, history and tradition only, you’re going to get into a very strange place where you’re trying to figure out what kind of 18th century regulation looks like the regulation of a gun in the cabin of an airplane,” Miller said. 

Adopting this methodology would also call into question lower court rulings that have been applied over the last 10 years. 

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It is not clear when the justices will release a ruling on the New York gun-licensing case, but the court usually decides all of its cases by the end of June. There are also questions about how the latest mass shootings could impact the court’s decision-making. 

“The justices are people and, as much as they might want to and try and think they are setting aside everything outside of the legal materials in the case, I think it’s impossible not to recognize the context that we’re in right now,” Charles said. 

Experts say it is also possible that an opinion expanding gun rights while the country is grappling with mass shootings might affect the public’s perception of the court and its legitimacy. 

“We might have decisions in the same month that are erasing the constitutional right to reproductive autonomy and simultaneously vastly expanding the right to carry guns in public,” Charles said. “It’s really hard not to see that having an effect on the public for whom, depending on how broad the court rulings are, it seems to be pretty unpopular. … It’s really hard not to see the unpopular decisions affecting the people’s view of the court.”

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