The Supreme Court announced on Aug. 16 that it will hear N.Y. State Rifle & Pistol Association Inc. v. Bruen on Nov. 3. This may be the biggest gun case hearing yet on the High Court docket. There’s no word thus far on whether the case will be heard remotely, as the Court has done recently. The building is still closed to the public, on the order of Chief Justice John Roberts, in response to COVID-19.
The case in question concerns whether states can restrict the right to carry a gun to whomever they choose, or must they broadly allow qualified applicants to carry? With oral arguments so early in the fall term, it may mean a decision in the case this year. Gun rights proponents have been pining for such a case as a follow-up to District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), the two landmark Second Amendment cases.
Will the Second Amendment remain the redheaded stepchild of the Bill of Rights, forever seated at the kids’ table of recognized rights? Perhaps not, this time, given the make-up of the Court.
Always a Bridesmaid …
In 2020, the Supreme Court turned down the chance to make a major ruling in a Second Amendment case. New York City’s gun transportation law, which forbade almost all transportation of a firearm, was scheduled to get a hearing at the Supreme Court. In fear of what would likely happen — namely a bright-line, pro-gun ruling — Democrats quickly revised the law in the hopes that it would prevent High Court review. They were right, and the Court declined to review, earning criticism for refusing to enforce gun rights Americans hold under the Heller decision. At the moment, those rights are very much up in the air.
President Joe Biden is currently battling Senate Democrats over the administration and enforcement of gun laws, as appointment of BATF director nominee David H. Chipman has stalled. Chipman has said the AR-15, the nation’s most popular rifle, should be treated as a machine gun, the most highly regulated firearm class.
Meanwhile, the battle in the lower courts to make meaningful sense of the current gun control caselaw rages on as gun owners struggle to see their rights respected. Recently the Minnesota Gun Owners Caucus joined others to file suit for their right to carry freely at a public event, the state fair. They argue the state police and the Minnesota State Agricultural Society, the fair host, are acting illegally by “prohibiting the lawful carry of firearms on the state fairgrounds or during the Minnesota State Fair.” This suit and others like it might become moot sooner rather than later at the hands of the Supreme Court.
Making It Moot
The New York Rifle & Pistol Association case presents the best chance in a long time for the Court to articulate a major pro-gun ruling. It’s easy to see how a six-justice majority might sign a solid pro-gun landmark. Justices Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, Samuel Alito, Clarence Thomas, and Roberts could join in an opinion declaring Second Amendment rights must be as respected as abortion rights, for instance. We have rulings declaring the Second Amendment fundamental and applying it to the states, but there has been no strict application. We’ll soon learn whether that’s happenstance or intransigence among some members of the Court.
Read more from Scott D. Cosenza.