On Monday morning, the Supreme Court took a step that gun rights advocates have been awaiting for more than a decade: It took up a challenge to restrictions on Americans’ rights to carry concealed firearms in public. There is little doubt that the court’s 6–3 conservative majority will use this case, New York State Rifle & Pistol Association v. Corlett, to knock down limits on concealed carry, creating a fundamental right to bear arms outside the home. The stakes are high: laws guaranteeing a right to concealed carry are associated with a significantly higher rate of handgun-related homicide. And the court’s move gives Democrats a clear choice between two concrete options: Stand by as the conservative justices invalidate state and local gun regulations in the midst of endless mass shootings—or expand the court.
New York is one of seven states that requires gun owners to show good cause to obtain a concealed carry permit. About 83 million people, or about one in every four Americans, live in these states. (Two additional states, Connecticut and Rhode Island, also give officials discretion to limit concealed carry.) The “good cause” standard gives state authorities broad discretion to deny the permit unless the applicant has demonstrated that, for instance, they have heightened reasons to fear for their safety in public. A federal circuit court upheld New York’s rule under the Second Amendment in 2020—a reasonable decision, since the Supreme Court has never actually found a right to transport guns outside the home. Rather, in 2008’s D.C. v. Heller and 2010’s McDonald v. Chicago, the court established a right to keep a handgun “in the home” for self-defense. In light of this language, five circuit courts have found no right to concealed carry, while two circuit courts have found such a right under the Second Amendment.
Ever since McDonald in 2010, firearm advocates have sought to persuade the Supreme Court to take up a case that would resolve this dispute. That quest has proved elusive. For many years, SCOTUS simply turned away Second Amendment cases, sometimes over the dissents of Justices Antonin Scalia and Clarence Thomas. The court likely swatted down these appeals because Justice Anthony Kennedy, the swing vote, was uncomfortable with a broad right to bear arms. After Justice Brett Kavanaugh replaced Kennedy, SCOTUS agreed to hear a challenge to New York City’s strict limit on the transportation of guns to firing ranges and vacation homes. But the city repealed its law, so the court tossed out the dispute. Presumably disappointed by the missed opportunity, Kavanaugh wrote separately to indicate that he would gladly strengthen the Second Amendment in a future case.
That case has now arrived, and its outcome is not difficult to predict. Not only has Kavanaugh replaced Kennedy, but Justice Amy Coney Barrett has replaced Justice Ruth Bader Ginsburg, who was not an ally of gun rights. On the lower court, Barrett authored a lengthy dissent arguing that the Second Amendment prohibits the government from imposing a permanent, categorical ban on gun possession by people convicted of felonies. Her opinion, an instant favorite among firearm enthusiasts, claimed that the original meaning of the Second Amendment did not allow for “virtue-based restrictions” to bear arms; felons may be stripped of “civic rights” like voting, Barrett wrote, but not “individual rights like the right to possess a gun.”
This conclusion was surprising because the Supreme Court explicitly addressed this question in Heller: Justice Antonin Scalia’s majority opinion offered a list of “presumptively lawful” restrictions on the Second Amendment, including “longstanding prohibitions on the possession of firearms by felons.” But it was Kennedy who urged Scalia to insert this qualifying language into his opinion. With Kennedy off the court, Barrett appeared eager to see the court do away with the limits that he demanded in Heller. There can be no real doubt that, as a justice, she will side with her fellow conservatives in extending Heller to take the right to bear arms out of the home, where Kennedy had confined it, and into the public sphere.
Such a decision would not alter laws in most states, where legislatures have already granted residents a right to concealed carry. But it would revolutionize gun laws in several populous states—including California, the nation’s largest state, which strictly limits concealed carry to residents who can show “good cause.” The 9th U.S. Circuit Court of Appeals upheld California’s law in 2016. And just last month, the 9th Circuit found no constitutional right to public carry whatsoever. In a 127-page opinion, Judge Jay Bybee, a conservative George W. Bush nominee, canvassed the history of gun rights, surveying the English Bill of Rights (a predecessor of the Second Amendment), practice in the American colonies, the revolutionary era, and the founding, as well as state and territorial laws throughout the 19th century. Bybee concluded that, as a matter of original public meaning, the Constitution does not guarantee a right to bear arms outside the home.
It will not matter to this Supreme Court. A growing body of historical research has demonstrated that Scalia’s opinion in Heller is just plain wrong as a matter of originalism: The words of the Second Amendment, as accepted at the time of its ratification, were not understood to create an individual right to bear arms. Scalia’s opinion was an example of living or “popular constitutionalism,” transfiguring modern demands into ancient rights. Yet the Supreme Court’s conservatives have shown no interest in reconsidering Heller; to the contrary, they are now on the brink of extending it. When originalism clashes with the conservative legal movement’s agenda, it is easy to guess which will win out.
In 2021 so far, there has already been more than one mass shooting each day. The United States is transforming into a battlefield, where no one can go to a store, a park, or a school without the fear that they might be shot to death. Further, American gun culture has contributed to hair-trigger policing that results in a vastly disproportionate number of police killings of civilians when compared to peer nations, a crisis which has fallen particularly hard on Black Americans.
At least the justices have made Democrats’ options starker than ever. Congress and the White House can prioritize court expansion, adding liberal justices to prevent the current 6–3 majority from eradicating gun safety laws. Or they can watch as the majority exacerbates the nation’s epidemic of gun violence by imposing a vision of the Second Amendment that data has indicated leads to more handgun-related homicides. The choice has never been so clear. And the stakes can be measured in human lives.
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