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The Supreme Court is poised to extend gun rights at the worst possible time

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- Commentary

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” —Second Amendment to the United States Constitution

As the deadly COVID-19 contagion sweeps across the country, gun sales are surging, spurred in many regions by panic buying and purchases by first-time firearm owners. Fearful and insecure Americans are taking advantage of weak and ineffective gun-control laws and stocking up, as President Trump might say, “like never before.”

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Meanwhile, the Supreme Court is poised to issue its first major Second Amendment opinion in more than a decade in a case that originated, fittingly, in New York City, now the epicenter of the COVID-19 outbreak in the United States. The case—New York State Rifle & Pistol Association Inc. v. City of New York—has the potential to vastly extend the rights of gun owners, and not just in New York, but throughout the entire nation.

At issue is a New York City “rule” (the term the city uses for its local ordinances) that was adopted in 2001 to prohibit residents from transporting licensed handguns beyond municipal limits. The rule was challenged in a federal lawsuit filed in 2013 by the NRA’s New York affiliate and three individuals. A district court judge ruled in the city’s favor in 2015, as did the Second Circuit Court of Appeals in 2018. The Supreme Court, however, agreed to review the case at the NRA’s request in January 2019, and heard oral arguments in December.

The plaintiffs contend that the city’s handgun transportation ban should be declared unconstitutional because it conflicts with the Supreme Court’s landmark 2008 decision on the Second Amendment, District of Columbia v. Heller.

In Heller, the Supreme Court struck down a ban on handgun possession in the nation’s capital, ruling for the first time that the Second Amendment protects an individual right to gun ownership. Deeply controversial and hotly contested, Heller split the Supreme Court along strict ideological lines, and was resolved on the basis of a 5-4 vote of the justices. The late Justice Antonin Scalia’s majority opinion stood the prior judicial consensus on the Second Amendment on its head, rejecting the great weight of prior scholarship and earlier court opinions, including the Supreme Court’s 1939 decision in United States v. Miller, that had construed the amendment as protecting gun ownership only in connection with service in long-antiquated state militias.

Scalia’s opinion was met by a blistering dissent written by Justice John Paul Stevens, who retired from the bench in 2010 and passed away last year. Drawing on a wide array of historical sources, Stevens chided Scalia for ignoring the actual debates that took place during the founding era on the ratification of the Constitution and the drafting of the Second Amendment. Those debates, in Stevens’ view, demonstrated the amendment’s purpose was not to safeguard individual gun rights, but to guarantee the survival of the militias as a “collective right” of the citizenry as an alternative to the creation of a large federal standing army.

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Stevens lost the battle of persuasion in Heller, and in 2010, in another 5-4 decision that also featured a Stevens dissent—McDonald v. Chicago—the Supreme Court extended Heller, holding that the individual right to keep and bear arms was incorporated by the 14th Amendment’s due process clause and hence was applicable to the states and local governments. The Second Amendment, as interpreted by Scalia, thus became the law of the land.

Although Scalia and Stevens are no longer with us, the ideological divisions they represented remain on the Supreme Court today. Indeed, when it comes to gun rights, the current court is even more conservative than it was in 2008. Justices Neil Gorsuch and Brett Kavanaugh, both appointed by Trump, are outspoken proponents of Scalia’s vision of the Second Amendment. And the tribunal’s remaining conservatives—Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito—participated in Heller and joined Scalia’s majority opinion.

Still, Heller by no means precluded all measures of gun control. As the Second Circuit noted in its evaluation of the New York handgun transportation ban that is now before the court, Heller was technically limited to possession of guns in the home, and established no clear limits on legislation aimed at regulating gun rights outside of the home.

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“Like most rights,” Scalia wrote in Heller, “the right secured by the Second Amendment is not unlimited… [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

And in an enigmatic footnote to the above paragraph, Scalia added: “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”

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Adhering to Scalia’s reasoning, in the years following Heller, lower courts have upheld a broad range of state and local gun-control regulations, a dynamic that has prompted the NRA and other gun-lobby groups to urge the Supreme Court to take up another Second Amendment appeal to reaffirm the amendment’s importance and place stricter limits on gun control. They may have found the perfect test case in the New York transportation ban. Like Heller, the New York ban concerns an outright prohibition, which will be hard, if not impossible, to justify before the court’s conservative majority.

Realizing it would likely lose the case, New York City amended its transportation rule in June to permit residents to take their handguns to second homes, businesses or shooting ranges outside city limits. And in July, the city filed a formal motion with the Supreme Court, requesting that the case be dismissed as moot. The court denied the motion in October, setting the stage for another Second Amendment showdown.

In December’s oral arguments, the city again asked the court to moot the case. The city made no attempt to defend the transportation ban.

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Unfortunately, given the city’s capitulation and the Supreme Court’s right-wing orientation, the only real remaining question is the scope of the NRA’s inevitable victory. Even if the court reconsiders the city’s request and enters a dismissal order, the NRA will walk away with a significant win, having forced the city to rescind one of the most stringent gun-control laws in the country. On the other hand, a decision on the merits on constitutional grounds in the NRA’s favor would reward the organization with an even bigger triumph, endangering gun-control laws everywhere.

A nation awash in firearms in the grip of the COVID-19 pandemic awaits the court’s decision, which is expected by the end of June.

Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial ErrorThe Last Appeal, and The Face of Justice.

This article was produced by the Independent Media Institute.

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