WASHINGTON – With Republicans and Democrats already speeding toward a familiar stalemate over whether to respond to a recent spate of mass shootings, experts on both sides of the debate are predicting the Supreme Court is poised to expand Second Amendment rights after a decade-long hiatus from the issue.
The only question, several court observers said, is when.
From a challenge to New York’s restrictions on carrying firearms outside a home to cases involving lifetime gun ownership bans for people convicted of certain crimes, the court’s months-old 6-3 conservative majority will soon have a number of high-profile opportunities to jump into the turbulent national debate over gun rights.
Four conservative justices already signaled a desire to address outstanding Second Amendment questions, but it’s not clear if the recent shootings in Colorado and Georgia will temper that enthusiasm. President Joe Biden has called for a federal response to the killings and several Republican lawmakers have dismissed the need for stronger gun laws. The court, led by Chief Justice John Roberts, has sometimes been hesitant to jump into Washington’s raging political battles.
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But even if the court delays, few expect it to wait for long.
“There’s no doubt that the Supreme Court is poised to take a Second Amendment case soon,” said Adam Winkler, author of “Gunfight: The Battle over the Right to Bear Arms in America” and a UCLA School of Law professor. “There’s no doubt that there’s a majority of justices on the court now who’ve expressed the desire.”
Eight people were killed, including six Asian American women, in a series of shootings March 16 at Atlanta-area spas and massage parlors. Ten people were killed days later in a mass shooting at a supermarket in Boulder, Colorado. The mass killings have quickly snapped Washington’s attention back to the deeply partisan gun debate after the issue was sidelined during the coronavirus pandemic.
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The nation’s highest court has skirted Second Amendment disputes since issuing blockbuster rulings in 2008 and 2010 that struck down gun restrictions in the District of Columbia and Chicago. The justices more recently considered a New York City prohibition on gun owners transporting firearms to ranges or second homes outside of the city, but dropped the matter after local officials rolled the regulation back.
But the dynamic has changed since Associate Justice Amy Coney Barrett joined the bench in October. While conservatives previously had the four votes needed to take a case, it wasn’t clear whether Roberts would deliver the fifth vote needed to corral a majority of the nine for a win. Now, with Barrett on the court, several experts said, Roberts’ vote is no longer as pivotal as it once was.
“While the Supreme Court in the past has held off on taking up Second Amendment cases, we have four justices who have said they’re eager to do so and it also appears likely that Justice Barrett is with them,” said Hannah Shearer, litigation director at the Giffords Law Center to Prevent Gun Violence. “They’re not going to wait forever.”
And that has raised alarms for gun control advocates.
Asserting that the court erred when it threw out the claim over New York City’s gun transport rule last year, conservative Justices Samuel Alito, Clarence Thomas and Neil Gorsuch wrote in a dissent that the rule was unconstitutional. Associate Justice Brett Kavanaugh agreed to drop the matter but said lower courts may be misapplying the court’s precedents and called on his colleagues to “address that issue soon.”
Five months after that decision, liberal Associate Justice Ruth Bader Ginsburg died, further shifting the balance of the court to the right.
Barrett, who drew headlines during her confirmation hearing for telling senators her family owns a gun, has given Second Amendment advocates reason to cheer in the past. In 2019, as a judge on the federal appeals court in Chicago, Barrett dissented from an opinion upholding a law that bans convicted felons from owning a gun.
The Wisconsin man who challenged the law, Rickey Kanter, had previously pleaded guilty to one count of mail fraud. Barrett wrote in her dissent that the ban went too far when applied to someone who had not been convicted of a violent crime.
“History is consistent with common sense: It demonstrates that legislatures have the power to prohibit dangerous people from possessing guns,” she wrote. “But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons.”
President Donald Trump granted Kanter a pardon in December.
Two similar questions are now awaiting consideration at the Supreme Court. In one, a Pennsylvania man who pleaded guilty to driving under the influence in 2005 is challenging the ban on purchasing or owning a gun. In another, a Pennsylvania woman who pleaded guilty to making a false statement on her tax returns sued over the ban.
The court hasn’t yet decided whether to take the cases.
The justices struck down handgun bans in the District of Columbia and Chicago in 2008 and 2010. The landmark, 5-4 decision in District of Columbia v. Heller specifically nodded to the right to own a gun for lawful purposes, like self-defense within the home. The late Associate Justice Antonin Scalia, who wrote that opinion, nevertheless suggested that there were limits to the Second Amendment.
“Handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid,” he wrote at the time.
Since then the court has let stand a Chicago suburb’s semiautomatic weapons ban and a variety of prohibitions against carrying guns in public, from New Jersey to California. It has refused to second-guess age limits for carrying guns in Texas and requirements for disabling or locking up guns when not in use in San Francisco.
Now the court has another opportunity to probe the limits Scalia alluded to in the Heller decision. A new round of litigation over how far states may go to restrict the right to carry guns outside a home has percolated up through the courts.
The California-based U.S. Court of Appeals for the 9th Circuit on Wednesday upheld a Hawaii gun regulation that limits the ability of people to openly carry guns in public, a suit that appears destined to eventually make its way to the Supreme Court.
The Supreme Court already has a similar dispute on its docket from New York State. In the first major Second Amendment case to come before the court since Barrett joined, two residents sought a license to carry guns outside their home but were denied because they didn’t meet the state’s requirement of having a “special need for self protection” above and beyond what’s required by the general public.
They sued, arguing the state requirement is so onerous that it excludes virtually everyone from carrying a gun. The New York-based federal appeals court disagreed, pointing to an earlier decision in 2012 in which the judges acknowledged a deep lack of clarity about what Scalia’s 2008 decision in Heller meant for guns outside a home.
“What we know from these decisions is that Second Amendment guarantees are at their zenith within the home,” the court wrote at the time. “What we do not know is the scope of that right beyond the home and the standards for determining when and how the right can be regulated by a government.”
It’s that uncertainty that makes the New York regulation ripe for consideration, said Josh Blackman, a law professor at South Texas College of Law Houston. The court has managed to avoid the issue for years, he noted, “but now we have a different court.”
The justices are expected to discuss for the first time whether to take the New York suitwhen they meet privately on Friday. It’s not clear when the court might make a decision on whether to take the appeal.
“The issue has been floating around for nearly a decade and the court should answer the question, and the answer is either ‘yes’ or ‘no,'” Blackman said. “All the pieces are there.”
But the court has managed to step around major controversies in recent weeks, including on abortion, the 2020 election and immigration policies from the Trump administration. It could easily do so again with the pending gun cases.
The nation remains deeply divided over guns. Two-thirds of Americans back tougher gun laws, a recent USA TODAY/Ipsos Poll found, but Republican support has fallen significantly as the issue takes on a stronger partisan cast than it did a few years ago.
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But the court also has time: Any case it decides to take now would not likely be argued until the fall. And that would almost certainly push a decision back until next year. By then, the scorching debate over how to respond to the recent shootings in Georgia and Colorado may be over.
“Everyone speculates on what may influence the court” on whether to take a case, said Stephen Halbrook, a senior fellow at the Independent Institute and an attorney who has represented the National Rifle Association. “We don’t really know whether a recent mass murder would be a factor regarding the court’s willingness to take on a Second Amendment case.”