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10 cases that could change how the Supreme Court looks at the Second Amendment

Posted May 26, 2020 7:20 a.m. EDT

— The Supreme Court's solid conservative majority could soon choose to take up its first major Second Amendment case in nearly a decade, positioning the court to override state laws established to limit the availability and accessibility of some firearms and when they can be carried in public.

There are 10 cases waiting before the justices, and it only takes the agreement of four of the nine justices to vote to hear a case -- a low hurdle for the right-leaning Supreme Court seemingly eager to make a broad Second Amendment ruling.

Last month, Justice Brett Kavanaugh expressed his concern that lower courts have been thumbing their noses at Supreme Court precedent on the Second Amendment, saying 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."

Justice Clarence Thomas in 2018 complained that the lower courts were treating the Second Amendment right "cavalierly."

Both Kavanaugh and President Donald Trump's first Supreme Court pick, Justice Neil Gorsuch, received the endorsement of the National Rifle Association. Amy Hunter, director of media relations at the NRA said the court taking up the cases under consideration "would help correct the lower courts' treatment of the Second Amendment and preserve the fundamental constitutional rights of law-abiding Americans."

It's been over a decade since 2008's landmark 5-4 ruling in District of Columbia v Heller that held the Second Amendment protects an individual's right to keep and bear arms at home for self-defense. Except for a follow-up decision two years later, the court has not weighed in significantly again.

Jacob Charles, the executive director of the Center for Firearms Law at Duke Law School says it seems as though there are "at least" four justices eager to rule on a Second Amendment case, but that is no guarantee the court will make a sweeping ruling the way some conservatives hope.

"The Court's composition has changed considerably since Heller," Charles said. While Chief Justice John Roberts was in the majority in 2008, he is now the mostly likely swing vote on the issue between his four conservative allies and the court's four liberals. It's unclear how far Roberts wants to go.

"That means a court that is to the right of where it was in 2008, but the chief's position as the median may make him more cautious, seeking a narrower decision, with a more gradual approach to the Second Amendment," Charles said.

Last month, the court ducked the issue, but still some justices made a statement.

A New York City law regulated where licensed handgun owners can take a locked and unloaded handgun, but it was changed before the court would rule after supporters of gun regulations feared the justices would take an idiosyncratic state law and use it as a vehicle to expand upon Heller. But conservative justices were clearly unhappy with how lower courts were deciding Second Amendment cases.

"Anybody reading what came out in the New York City case recently and just following the court and its changed makeup would have to say there's a high likelihood they are going to take up a Second Amendment case," said Eric Tirschwell, managing director of the pro-gun control group Everytown Law.

Ability to carry firearms outside the home

Five of the 10 cases the court is looking at ask justices to determine whether the Second Amendment allows the government to restrict the ability of citizens to carry a firearm outside the home to those with "good cause" or "justifiable need" to do so.

For example, in New Jersey, Thomas Rogers, a restaurant manager, argues that he should be allowed a permit to carry a firearm. Rogers was robbed at gunpoint while working as the manager at a restaurant. He runs a large ATM business within high-crime areas, and says that places him at a high risk for another crime. Yet he was denied a permit by the chief of police for Wall Township, the town where Rogers resides.

The law "effectively bars ordinary, law-abiding citizens from carrying handguns outside the home for self-defense," Paul Clement, a lawyer for Rogers, said in court papers. Clement is a former solicitor general under President George W. Bush.

Rogers' lawyers speak directly to the justices unhappy with how the 2008 ruling is being interpreted, arguing that the Supreme Court's review is necessary to "correct the decision of the court below essentially ignoring the clear holdings of Heller."

In court papers, New Jersey said it has not "banned carrying a firearm in public; instead, the State has carefully limited public carrying to those individuals with a need to do so."

Several similar cases challenge state laws that restrict the right to carry firearms outside of the home, including two others in New Jersey, one in Maryland and one in Massachusetts. Additionally, one case out of Illinois challenges a law banning non-residents from applying for a concealed-carry license in the state.

"We hope the court will consider the issue of carry outside the home, as the lower courts have ignored existing Supreme Court precedent regarding the right to bear arms," said the NRA's Amy Hunter.

Assault-style Weapons

As assault-style weapons are increasingly used in American mass shootings, state lawmakers struggle with potential solutions to the nation's endemic gun violence problem. Some of these laws have been brought to the courts.

Two high profile cases on assault-style weapons sit before the justices involving challenges to state laws involving bans on certain semiautomatic firearms and high capacity magazines, one from Illinois and one from Massachusetts.

The plaintiffs in the Massachusetts case, including two firearm dealers and the Gun Owners' Action League, claim that the law is contrary to the decision in Heller, in which Justice Antonin Scalia wrote that Washington, DC's ban on handgun possession in the home "violates the Second Amendment."

But Massachusetts argues that the law is consistent with Scalia's ruling, quoting the late justice's opinion that the Second Amendment does not guarantee "a right to keep and carry any weapon whatsoever" and that "the Second Amendment right ... extends only to certain types of weapons."

Massachusetts Attorney General Maura Healey said the state's ban is on "weapons with distinct military origins that are used disproportionately in mass public shootings and killings of law enforcement officers."

The other case, out of Illinois, similarly involves a ban on certain kinds of semiautomatic firearms and high capacity magazines in Cook County. The plaintiffs in the case argue that the term "assault weapons" is a "made-up and misleading term ... developed by anti-gun publicists."

The court has ducked similar challenges on assault-style weapons limits before.

In 2016, The court declined to take up a constitutional challenge to a Connecticut gun law passed in the aftermath of the Sandy Hook Elementary School shooting. The law bans certain semiautomatic assault weapons and large capacity magazines.

The court also previously declined to weigh in on challenge to a Chicago suburb's ban on semiautomatic firearms with the capacity to accept more than 10 rounds of ammunition in 2015.

Before his elevation to the high court, Kavanaugh wrote in a 2011 dissent that DC's ban on semiautomatic rifles and gun registration requirement are "unconstitutional and may not be enforced."

Kavanaugh testified at his Senate confirmation hearing in 2018 that he based his opinion on the Heller decision. "This is all about precedent for me," he said and noted that Scalia had said that dangerous and unusual weapons could be prohibited. Kavanaugh said it's "very important to recognize under the Heller decision that machine guns can be prohibited" but he continued that the ban at issue "seemed to fit common use and not being a dangerous and unusual weapon."

Other kinds of restrictions

The justices also have the potential to take a narrower approach.

For instance, one case challenges the federal ban on out-of-state handgun purchases. The plaintiff, Frederic Russell Mance, Jr. attempted to sell handguns to Tracey and Andrew Hanson, who were residents of the District of Columbia, in Texas. However, federal law generally makes it illegal for a licensed firearms dealer to sell any firearm to a person who does not reside in the same state.

Critics say the provision violates the Second Amendment and forces potential gun purchasers to pay for an expensive in-town middleman to facilitate the purchase. The district court decision in 2015 held the federal provision unconstitutional under the Second and Fifth Amendments.

In its brief to the Supreme Court, the Justice Department argues that "Congress and the States have long imposed certain conditions and restrictions on the commercial sale of firearms."

Pena v. Horan concerns California's Unsafe Handgun Act, requiring new models of semiautomatic handguns manufactured or sold in the state to include certain safety features.

At issue is whether the law violates the Second Amendment because it prohibits the manufacture or sale in California of some models of handguns that may be made or sold elsewhere, especially given the narrowing regulations impressed upon gun manufacturers.

While all sides are watching closely, there's no guarantees with anything involving the Supreme Court, however.

"When the court will take another gun case, what it will be, and what the court will decide is all guesswork," said Jonathan Lowy, chief counsel and vice president of pro-gun safety organization Brady: United Against Gun Violence. "They could grant cert in these cases as soon this week, or soon after, and we will be ready to ensure that Americans' right to life is not infringed upon by the gun industry."

Tirschwell says that Everytown is "optimistic" that even in a more conservative configuration, the court will uphold gun safety laws coming from state houses across the country."

"The bottom line is that is that the American public overwhelming supports gun safety laws and what we've seen over the last two years in statehouses across the country where lawmakers are responding to that," he said. "So the gun lobby is looking to the courts."

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