By Royal Alexander
The latest legal challenge concerns a New York law governing licenses to carry concealed handguns in public but there are potentially a host of others as well
The U.S. Supreme Court appears poised to strengthen and expand 2nd Amendment rights after a decade of no action on the issue. The Court has several current opportunities to further address the scope of its Heller decision that generally pose one legal question: how far may states go in restricting the individual right to carry guns outside a home.
These various legal challenges have worked their way up to the Supreme Court and now require at least four members of the Court to vote to grant the application to hear the cases. These challenges include the New York law as well as multiple other cases nationally presenting distinct legal issues.
The Supreme Court has not directly addressed the issue of gun rights since its landmark rulings in 2008 and 2010. The 2008 Heller decision held that the right to keep and bear arms was both a collective (military and law enforcement) right as well as an individual right. The 2010 McDonald decision simply held that the Due Process Clause of the 14th Amendment extended to the states and municipalities the 2nd Amendment’s right to keep and bear arms.
Several months ago, the Court considered a different prohibition by New York City that kept gun owners from transporting firearms to ranges or second homes outside of the city but then decided not to hear the case after NY City officials repealed that prohibition, rendering that case moot.
During its 10-year break, the Court’s inactivity allowed a number of questionable gun laws and regulations to be passed and then remain law. These included, for example, a suburban Chicago ban on semi-automatic weapons, a variety of prohibitions across the country against carrying guns in public, age limits for carrying guns in Texas and requiring citizens to disable or lock up guns when not in use in San Francisco.
Justice Amy Coney Barrett, as a federal appeals court judge, dissented from a 2019 opinion that banned convicted felons from owning a gun. That Kanter case involved a man, Rickey Kanter, who had pleaded guilty to one count of mail fraud. Judge Barrett wrote in her dissent that the gun ban went too far because it was being applied to someone who had not been convicted of a violent crime, only mail fraud.
In her dissent, then-judge Barrett wrote that “history is consistent with common sense: It demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons.”
Still other gun rights issues now pending before the Supreme Court involve a Pennsylvania man who pleaded guilty to driving under the influence in 2005 who is challenging the ban on purchasing or owning a gun. In another, a Pennsylvania woman who pleaded guilty to making a false statement on her tax returns sued over the ban. Also, the frequently reversed U.S. 9th Circuit recently upheld a Hawaii gun regulation that limits the ability of citizens to openly carry guns in public.
Further, in yet another New York State case, two residents sought a license to carry guns outside their home but were denied because they supposedly didn’t meet the state’s requirement that they have a “special need for self-protection” above and beyond what’s required by the general public. (That standard is so broad I doubt many of us could meet it but undoubtedly our right to self-defense is a “special need” for millions of us!).
Our Constitutional rights are rights that are “fundamental to the Nation’s scheme of ordered liberty and deeply rooted in this Nation’s history and tradition.” None of those rights are more important than the 2nd Amendment and the Court should strive to further enshrine and protect it.