The Second Amendment’s Supreme Court Reckoning Begins

The Supreme Court of the United States is beginning its first major foray into the Second Amendment in more than a decade. The high court has not ruled on a significant gun rights case since deciding District of Columbia v. Heller in 2008 and McDonald v. Chicago in 2010. This latest case has broad ramifications for how rights are viewed across the nation.

Liberty Nation's legal affairs editor, Scott D. Cosenza, has been following the ebb and flow of American gun rights. As a constitutional attorney, he has both an expert and unique opinion to bring to the table. Join Cosenza and Managing Editor Mark Angelides for a Q&A on what to expect in the upcoming case.

Mark Angelides: So this will be the first big Second Amendment case before the Supreme Court in a long time. Before we delve into the specifics, Scott, why has there been such a long hiatus? Surely an issue of this importance gets serious challenges all the time?

Scott D. Cosenza: Mark, the Supreme Court – to the frustration of many Americans – goes at its own pace. It is anti-democratic by design, and the justices get to pick and choose their cases. There are many gun control cases that have been ripe enough in the lower courts to reach the Supreme Court if the justices desired to take the cases. They have not until now.

MA: Now, what about the background of this specific case. What's the question being put before the court? And perhaps more importantly, why this one rather than the thousands of others that have been up before courts all over the country?

SDC: This case concerns whether or not New York is allowed to use an arbitrary standard to determine whether or not a person is able to legally carry a firearm in the state. The New York State Rifle and Pistol Association is asking the Supreme Court to declare the current licensing rubric unconstitutional. Their wish is for the court to order licenses be granted on a "shall issue" basis to all qualified applicants.

As to why … that's a more complicated question. It happened to be ripe and available and one that justices wanted to pick.

MA: So this is New York Rifle & Pistol Association v. the State of New York … What's your legal take on this?

SDC: In my analysis, the Second Amendment guarantees the right to keep and bear arms outside the home as well as inside the home. I would declare the New York State scheme of licensing unconstitutional.

MA: How about the justices? As we know, it takes just four justices to agree to hear a case. Do we have any idea which four this was? And is it fair to assume that number didn't include any of the more liberal-leaning ones?

SDC: Well, we have one big change at the court – or rather three – in the past few years that seem to have made the difference. President Trump's three appointments to the Supreme Court are likely what have controlled the taking of the case. While that is the inference the facts demand, it's far from a case of beyond a reasonable doubt.

MA: I guess the big question here, Scott, is what happens across the country if the judges rule in favor of NY Rifle & Pistol? What are the ramifications, and are they likely to be sweeping or slow burn changes?

SDC: The justices have wide latitude on how they craft their rulings. They can issue a broad ruling to encompass many other states' laws, for instance, or a very narrow one. In gun cases especially, we have seen the court craft exceedingly narrow rulings; so, I wouldn't expect a broad one here just based on recent history.

MA: It's never wise to offer an opinion before the ruling is made, but based on what you know about the justices, the merits of the case, and the political climate, which way do you think this will go?

SDC: I generally expect to be disappointed by the court, and they rarely let me down. That said, I can't help but find a spark of enthusiasm when I think of other interpretations of the Constitution I've heard from Justices Neil Gorsuch and Amy Coney Barrett that lead me to think they may be Second Amendment champions. Wishful thinking may be at play there, too.

MA: If the court rules in favor of NY Rifle & Pistol, there'll be a lot of upset anti-gun activists … Do they have any further legal recourse?

SDC: Yes. Exactly what their recourse would be depends on the specifics of the ruling. That said, basically, they can elect different leaders that appoint different justices to try to have that ruling reversed … or pass a constitutional amendment. Those are the avenues available.

I suppose it's incumbent to say at this point – they could pack the court with a bunch of additional justices, too. Fortunately for the nation, the appetite for such a move seems to be very limited.

~ Read more from Scott D. Cosenza and Mark Angelides.