The Supreme Court will meet later this week to consider adding cases to its fall docket. Court watchers expect action on multiple second amendment cases. There are ten – yes, ten – cases in the pipeline for the nine justices to choose from, and appearing on their published list for consideration. It is not a stretch to say the Court will decide soon on fundamental gun control rules for the country.
Those gun-rights cases which may be elevated to the Supreme Court cover three key issues. Can states make it all but impossible to obtain permission to carry a gun outside the home? Can states simply ban whole classes of firearms like handguns or “assault rifles” that are legal under federal law? Can states discriminate against out-of-state residents in gun transactions?
The Garden State is a perennial favorite to top the list of places with the worst record on the Second Amendment. Several of the cases that could be chosen involve challenges to the state’s policies on carrying a firearm. New Jersey simply makes it impossible for the average citizen to obtain a permit. To wit, there are currently a total of 1,012 people licensed to carry in the state. N.J. has almost 9 million residents. Its neighbor Delaware has nearly a million people but 17,436 people who may carry. Finally, Pennsylvania, with about 13 million people, has 1.275 million licensees.
In New Jersey, 0.01% of the population is licensed to carry, while next door in Pennsylvania, almost 10% are. What those numbers tell us is that the local rules are determining who exercises their rights and how – something that is anathema to the free expression of fundamental rights. Can you imagine if attendance at worship services varied this much? How about newspaper sales? When juxtaposed with those other fundamental rights, the full nature of the infringement is revealed.
For the second issue of gun bans, there are all manner of cities and states that ban entire classes of guns, and often the most popular models. If the right is fundamental, every other ruling about fundamental rights would suggest such bans are unconstitutional. The same is true of the third issue. Rules governing who can buy a gun – and how – vary, depending on where the seller is located and the residency of the buyer. One struggles to think of another fundamental right conditioned on the state of one’s residence.
Redheaded Stepchild of Fundamental Rights
The hearing of all of these new cases is made possible by the Supreme Court’s dismissal, as moot, of the New York State Rifle and Pistol Association case. It was supposed to be the big blockbuster case for gun rights. New York’s restrictions on what people could do with their guns were so onerous that just about everyone thought the law would be held unconstitutional. After the Supreme Court agreed to hear that case, New York authorities ran back and changed the law to escape the possibility of a high court decision bolstering Second Amendment rights.
Gun ban proponents won when the case was denied on April 27. They were successful in avoiding the judgment of the Court, but this new batch of cases could make it worse for them. The ten cases now before the Court were being held in abeyance until they decided on N.Y. State Rifle and Pistol. Justice Kavanaugh published a note in the N.Y. case denial, saying:
“I share JUSTICE ALITO’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”
Heller and McDonald are the seminal gun control cases establishing the right to keep and bear arms as an individual right protected by the Second Amendment. They were decided in 2008 and 2019, respectively. Reading Justice Kavanaugh above, we can put him and Alito in a club started by Justices Thomas and Scalia. They thought fundamental gun rights deserved the same respect and protection as other constitutional rights. Thomas wrote the following in 2015: “Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it.” He was already done with lower courts ignoring the right, and the Supreme Court doing nothing about it.
And They Shall Reap the Whirlwind
Justice Scalia is no longer with us, but his replacement, Justice Gorsuch, seems almost a sure bet to support a view of the Second Amendment that requires deference to the individual rights. Any case in this list appears ripe for a decision that could change the law for millions of Americans. It’s also possible that the Court chooses none of these cases to review. That would send the message to lawmakers that it’s open season on gun owners. The current Supreme Court policy is to accept cases for review when at least four justices agree that they should.
Read more from Scott D. Cosenza.