This is, assuming Chekhovian logic prevails, an ominous development. The conservative justices have been itching to clarify the scope of the constitutional protection the court first established 13 years ago — and to make clear that the Second Amendment is not being treated, as some justices have complained, as a second-class right.
This court didn’t take up this case without a plan to pull the trigger. It’s a safe bet that it is not hearing a Second Amendment dispute for the purpose of limiting gun rights.
This means that at the very time the country is reeling from a seemingly ceaseless parade of mass shootings, the court may be about to limit the policy tools available to respond. Most states allow people to carry concealed weapons in public without a permit or make the permit available essentially on demand. States have the right to make the judgment, crazy as it sounds, that the more people packing, the better.
But the court may be on the brink of telling eight states and the District they don’t have the power to require people to show some need before obtaining a concealed carry permit. Such a ruling would be an unwarranted intrusion on state rights, particularly since the evidence supports what logic suggests: Lax concealed carry rules are associated with greater gun violence.
Some history: The Second Amendment was not understood to confer an individual right to “keep and bear arms” until the court’s 2008 ruling in Heller v. District of Columbia, striking down the District’s ban on handgun possession. Justice Antonin Scalia, writing for a five-justice majority, found that right existed — but he emphasized that it was “not unlimited.”
For example, Scalia wrote, “nothing in our opinion should be taken to cast doubt on long-standing 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.”
In the years since, lower courts have struggled with, and differed on, what gun restrictions pass constitutional muster and what test should be used to judge their constitutionality. Conservative justices, frustrated that lower court judges have been too willing to let the restrictions stand, have excoriated their colleagues for being unwilling to take cases that would clarify the situation.
“If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene,” Justice Clarence Thomas wrote in 2018, when the court refused to review California’s 10-day waiting period for purchasing guns.
“It is clearly time for us to resolve the issue,” Thomas, joined by Justice Brett M. Kavanaugh, wrote last year, when the court declined to take up another challenge, this one to a New Jersey law that requires those who apply for permits to carry handguns to demonstrate “a justifiable need to carry” the weapon.
That moment has now arrived — or, more precisely, will arrive next year, when the case will be argued and decided. It involves a century-old New York state law that requires residents to show “proper cause” — in general, “a special need for self-protection” — to receive a concealed carry permit. (New Yorkers are still entitled to a “premises” license that lets them keep a gun in their home or business, and a “restricted license” to carry guns for purposes such as hunting or target practice.)
At risk are various other common-sense gun restrictions. As an appeals court judge, Kavanaugh found that banning assault weapons and limiting high-capacity magazines violated the Second Amendment. On the appeals court, Justice Amy Coney Barrett said an automatic ban on felons’ possessing guns went too far when applied to those without a history of violence. Thomas has already made clear his view that “the right to carry arms for self-defense inherently includes the right to carry in public.”
Federal appeals courts across the country have split on the constitutionality of concealed carry restrictions. The federal appeals court in New York, upholding the state’s law, assumed that the constitutional right to keep and bear arms for self-defense applies outside the home. However, it said, “assessing the risks and benefits of handgun possession and shaping a licensing scheme to maximize the competing public-policy objectives, as New York did, is precisely the type of discretionary judgment that officials in the legislative and executive branches of state government regularly make.”
But former solicitor general Paul D. Clement, in urging the court to hear the case, argued that laws like New York’s “ration constitutional rights instead of protecting them,” adding, that the “government may not reserve to a select few what the Constitution guarantees to all.”
The pistol is on the wall. It is not hard to count five votes for firing it.