In May 2016, the National Rifle Association endorsed Donald Trump for president. Chris Cox, the executive director of the NRA’s Institute for Legislative Action, said the group rarely endorsed a candidate so far in advance of an election, but that precedent was overridden by the members’ concern that the Second Amendment might not survive a Hillary Clinton presidency. Trump himself said, “The only way to save the Second Amendment is to vote for a person named Donald Trump.”
Cox told the members gathered for the NRA’s Annual Meetings in 2016 that the “Second Amendment is on the ballot this November.”
Of course that wasn’t literally true; constitutional amendments can’t be overturned in an election. What Trump and the NRA were saying is that the next president would appoint judges who could interpret away the Constitution’s guarantee of the right to keep and bear arms, or protect it. Trump told the group “they could trust” him to appoint judges who understand and respect Second Amendment rights.
Now, we’re there. Now, we’ll see.
Trump appointed three justices to the U.S. Supreme Court and the result is that the court has finally agreed to decide a Second Amendment case after a decade of turning them away. It was in 2008 that the court issued its ruling in District of Columbia v. Heller, holding that there is an individual right to keep and bear arms, no militia required. Then in 2010, the justices held in McDonald v. Chicago that this is a fundamental right, meaning that it also applies to the states unless a state can show a compelling reason that a restrictive law is necessary, and narrowly tailored, to accomplish a permissible purpose.
That left a gray area roughly the size of Antarctica. Could states refuse to issue concealed carry permits, or limit gun owners from transporting their firearms, or ban commonly owned weapons, or limit ammunition sales? The Supreme Court did not want to talk about it.
For example, in 2017 the Supreme Court refused to hear the case known as Peruta v. California. The issue there was whether the Second Amendment protects the right of ordinary, law-abiding citizens to carry handguns outside the home for self-defense when open carry is forbidden by state law. The denial left in place a lower court ruling that allowed the San Diego sheriff to refuse to consider the need for self-defense to be “good cause” for a concealed-carry permit.
But now the justices have agreed to hear the case known as New York Rifle & Pistol Association v. Corlett. The court has already ruled that there is an individual right to keep a gun in the home for self-defense; the issue in this case is whether the Constitution protects the right to carry a firearm for self-defense outside the home.
The case is a challenge to a New York law that requires a person to show “proper cause” in order to be granted an unrestricted license to carry a concealed firearm. “Proper cause” is defined as a special need for self-protection. Two men whose applications were rejected by the state of New York went to court over it, but the U.S. Court of Appeals for the 2nd Circuit upheld the state law.
The Supreme Court considered this case at three separate conferences before finally accepting it. Arguments will be heard in the fall, and what is likely to be a landmark decision is expected sometime during the first half of 2022.
Almost exactly a year ago, the Supreme Court decided that it didn’t need to decide a similar case that involved New York City’s ban on transporting licensed firearms outside the city. That case was moot, a majority of the justices concluded, because New York City had repealed the ban before the case reached the Supreme Court. Justice Samuel Alito wrote a dissenting opinion expressing concern that lower courts “may not be properly applying” the law as established in the Heller and McDonald cases. Justice Brett Kavanaugh wrote that he shared that concern and urged his colleagues “to address that issue soon, perhaps in one of the several Second Amendment cases,” including some that involved the right to carry a firearm outside the home for self-defense, that were pending before the court.
But it didn’t happen. At its May 1, 2020, conference, the court considered 10 gun rights cases and then refused to hear any of them.
One of those cases, Peña v. Horan, was a federal constitutional challenge to California’s Unsafe Handgun Act, known as the “handgun roster” law. The California Gun Rights Foundation argued that the state’s “roster” and the related regulatory scheme is “a de facto ban on handguns in common use for lawful purposes,” and that it violates the Second Amendment.
Justice Clarence Thomas made the point that his colleagues would not take such a hands-off position if the constitutional right in question involved free speech or abortion. It was an argument he had made many times, without apparent result.
What’s different now? On October 26, 2020, the U.S. Senate voted 52-48 to confirm Judge Amy Coney Barrett to the U.S. Supreme Court, the third justice nominated by President Donald Trump.
That’s how narrowly the Second Amendment finally made it to a hearing. You have the right to keep and bear arms, but it’s hanging by a heartbeat.
Susan Shelley is an editorial writer and columnist for the Southern California News Group. Susan@SusanShelley.com. Twitter: @Susan_Shelley