Supreme Court considers the scope of the Second Amendment next term

U.S. Supreme Court (Stefani Reynolds/Bloomberg via Getty Images)

The Supreme Court decided Monday that it would address the scope of the Second Amendment in a case involving a New York law that prohibits people from carrying concealed handguns in public.

It has been more than a decade since the Supreme Court issued a ruling on a major case involving the right to bear arms, and the court’s decision to hear the case comes in the aftermath of numerous mass shootings in the United States and the Biden administration’s drive for stricter weapons controls.

The court’s decision also emphasizes the importance of Justice Amy Coney Barrett’s position on the newly solidified conservative court. Justice Clarence Thomas and others had urged the justices to consider the matter.

For the first time, the Supreme Court ruled in 2008 that the Second Amendment guarantees an individual’s freedom to keep and bear arms at home for self-defense. But for a two-year-later ruling, the justices have largely avoided the topic, infuriating gun-rights advocates and even some of the justices themselves.

“If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene,” Thomas wrote in a 2018 case. “But as evidenced by our continued inaction in this area, the 2nd Amendment is a disfavored right in this Court.”

Following the court’s decision to essentially dismiss one case last term, Justice Brett Kavanaugh wrote that he hoped the justices would vote to hear a new case “soon.” Nonetheless, the court refused to hear any new cases in June, possibly because it knew there weren’t five votes ready to decide.

However, the justices’ decision on Monday could provide an opening for the court to reconsider the late Justice Antonin Scalia’s 2008 majority opinion in District of Columbia v. Heller, a conservative whose opinion has received renewed scrutiny in recent weeks as the nation grapples with a rash of deadly mass shootings.

Scalia, along with four other conservatives, delved into the “originalist” view of the Framers in the 18th Century and argued that the Second Amendment referred to private citizens, a deviation from how federal judges usually viewed the amendment as protecting state militia, such as National Guards, in the 2008 decision.

However, Scalia’s interpretation of history led him to note certain exceptions, such as those involving concealed firearms. “(T)he majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues,” he wrote.

As the case is heard by the Supreme Court next term, there could be some federal action on the subject, with Democrats, including President Joe Biden, urging Congress to pass stricter gun laws in order to deter further shootings.

The latest case, New York State Rifle & Pistol Association v. Corlett, involves a New York law regulating concealed weapon licenses in public. It is necessary for a citizen to demonstrate a “actual and articulable” need to do so.

“The Supreme Court’s decision in the case could have an impact on the millions of people living in jurisdictions with restrictive public carry licensing regimes and will tell us how broadly the current set of justices are reading the Second Amendment,” said Jacob D. Charles, the executive director of the Center for Firearms law at Duke University School of Law.

While most states still require a permit to carry a concealed weapon, many states now have little to no restrictions on open carry, according to the Giffords Law Center.

In court papers, New York Attorney General Letitia James stated that courts have ruled that the right to carry weapons in public is not unrestricted and can be subject to legislative measures consistent with “with longstanding limitations on that right.” after the seminal Supreme Court cases Heller and the later McDonald v. City of Chicago.

James told the court that the law requires applicants to carry the handgun in public without restriction to show an “actual and articulable — rather than merely speculative or specious — need for self-defense.” Lower courts upheld the restriction.

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