The case the Supreme Court just agreed to hear could throw a wrench in those plans. Here’s why we can expect a pro-gun ruling from the court.
The Supreme Court’s 2008 pro-gun ruling has been applied narrowly by lower courts
In 2008, the Supreme Court decided in D.C. v. Heller that the Second Amendment protects an individual’s right to keep and bear arms for self-defense. Many constitutional scholars saw this as a dramatic shift. For 70 years, the court had considered Second Amendment rights to be confined by the text’s opening phrase, “a well-regulated militia,” and treated it as a collective right. However, in Heller, writing for a five-justice majority, Justice Antonin Scalia insisted that “the right secured by the Second Amendment” was robust enough to warrant striking down Washington, D.C.’s handgun ban. Scalia stressed that the amendment’s right “is not unlimited” and could be subject to some regulation.
Many conservatives and libertarians praised the decision as a landmark victory for the Second Amendment. Others, such as Nelson Lund, feared that the opinion left too many gaps and loopholes. Lund predicted that lower courts would apply Heller in a limited way. He was right.
The “rule of four” (or, why we can expect a pro-gun decision next term)
The Supreme Court receives close to 8,000 petitions to hear cases but has space for only around 80 on the docket each term. To sort through these, the court has some informal rules to help decide what to decide. The most important is the “rule of four,” which means that at least four justices have to agree to take up a case. Since it typically takes five justices to form a majority voting bloc, this encourages what political scientists have called “strategic behavior.” The four who vote to take up a case must be reasonably certain they can convince at least one colleague to join them, so they don’t accidentally end up on the losing end of a case they voted to take.
With only three liberal justices remaining on the Supreme Court since the death of Ruth Bader Ginsburg, the fact that at least four of the current justices voted to take a Second Amendment challenge is a reliable signal that they believe that a majority will agree to expand the right to bear arms established in Heller.
But we don’t need to rely on the case grant alone to make this prediction. We can listen to the conservative justices themselves. Since Heller was decided, five of the six conservative justices have telegraphed their disappointment in how narrowly lower courts have applied it.
Justice Clarence Thomas has been the most vocal, issuing scathing dissents from the Supreme Court’s refusal to take up Second Amendment cases. In one, Thomas lamented that his colleagues’ “continued inaction” on these cases proved that the Second Amendment has become “a disfavored right.” In another, joined by Neil M. Gorsuch, Thomas wrote that “the time has come” to decide whether the Second Amendment protects more than the right of an individual to carry a “gun from the bedroom to the kitchen.”
Brett M. Kavanaugh and Amy Coney Barrett, the two newest conservative justices, put their pro-gun rights views on display as lower court judges. In 2011, Kavanaugh dissented from a ruling upholding the District of Columbia’s ban on semiautomatic weapons. In 2019, Barrett dissented from a ruling barring a felon from owning a gun.
Most recently, Justice Samuel A. Alito Jr. issued a 31-page dissent from the Supreme Court’s decision this term to dismiss a case it had granted challenging a New York City gun law, because the city ended up revising its laws before the case could be heard. In that dissent, Alito argued that the Supreme Court ought to have let the case proceed — and that he would have struck down the regulation on Second Amendment grounds. Alito closed by noting that “the way Heller has been treated in the lower courts” is “cause for concern.”
But a sweeping decision might backfire, prompting action on court changes
Often times, “judicial signals” that communicate a majority’s readiness to revisit or alter the law are subtle, perceptible only to those paying close attention to the court. When it comes to the Second Amendment, the conservative majority’s signal is being broadcast loud and clear.
But a sweeping pro-gun Second Amendment decision from the Supreme Court could backfire for conservatives. It is no secret that the Supreme Court’s six-justice conservative supermajority is under intense scrutiny from the left, with some Democratic activists and lawmakers calling for “court-packing” — adding new seats for Biden to fill — and/or “court-curbing” — stripping the justices of jurisdiction, life tenure or both. So far, the president has committed only to a bipartisan court commission to study court changes.
Most Americans support gun regulation. In New York State Rifle & Pistol Association v. Corlett, the NRA wants the court to vastly expand individual gun rights and limit government’s ability to regulate their use. If the conservative Supreme Court delivers such a decision, liberal activists might have the ammunition they need to prompt reluctant Democratic lawmakers to change the court.