Last January, the Supreme Court announced that it would hear New York State Rifle & Pistol Association Inc. v. City of New York, the first major Second Amendment case to be heard by the Supreme Court in nearly a decade — and also the first since Justice Anthony Kennedy’s retirement shifted the Court dramatically to the right. The case centers on an unusual — and recently changed — New York City rule that limited where gun owners with a certain kind of permit were allowed to bring their guns. Gun control advocates, including policymakers in both New York City and the New York state legislature, fear a big loss in the Supreme Court and are desperate to make the case go away. Indeed, New York City changed their gun rules after the Supreme Court announced it would hear the case, and state legislators enacted a new law forbidding the city from bringing back the old rules — all in the hopes of obviating the need for the Court to weigh in. Because the legal controversy between the city and the plaintiffs is now over, the city asked the Court to dismiss this case as moot. The justices are scheduled to discuss whether to dismiss the case at their October 1 conference. New York State Rifle, in other words, is of two-fold importance. It is important because the Supreme Court’s current majority is likely to expand the scope of the Second Amendment significantly if they decide the merits of this case. But it is also important because the debate over whether to dismiss this case will offer a window into the psychology of the Court’s Republican majority. The argument that New York State Rifle must be dismissed as moot is very strong. Should the Supreme Court move forward with the case, it will only add to fears — including fears that were recently raised by Justice Sonia Sotomayor — that the Court is bending the rules in order to achieve conservative outcomes.
Why gun rights advocates have so much to gain
A few months before his death this summer, retired
Justice John Paul Stevens offered a surprisingly candid window into the
Court’s internal deliberations. In its 2008 decision in District of Columbia v. Heller,
the Supreme Court held for the first time that the Second Amendment
protects an individual right to bear arms. The Court split along
familiar ideological lines, with Kennedy joining his fellow
conservatives in the 5-4 majority. Heller, however, was hardly a total victory for
advocates of gun rights. Indeed, Justice Antonin Scalia’s majority
opinion is riddled with caveats. Heller suggests that
“longstanding 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”
all remain valid, as are bans on “dangerous and unusual weapons.” In a November interview with the New York Times’ Adam Liptak, Stevens revealed that Kennedy asked for “some important changes” to Scalia’s original draft of the Heller opinion. At Stevens’s urging, Kennedy requested language stating that Heller “should not be taken to cast doubt” on many existing gun laws. Without Kennedy’s intervention, in other words, Heller may not have included the important language limiting the scope of the Second Amendment. But Kennedy is gone. And his replacement, Justice Brett Kavanaugh, appears very eager to expand gun rights. Shorter after Heller was decided, the District
of Columbia’s government passed legislation banning semi-automatic
“assault weapons” and requiring gun owners to register their firearms.
Dick Heller, the lead plaintiff in the Supreme Court’s Heller decision, also led the challenge to this new gun law, and the case — Heller v. District of Columbia — was eventually heard by a panel of three Republican-appointed judges. Two of those judges largely upheld the law in 2011
(although they called for further proceedings on the registration
requirement). The third judge was Brett Kavanaugh, who claimed that
“both D.C.’s ban on semi-automatic rifles and its gun registration
requirement are unconstitutional under Heller.” (This second iteration of the Heller litigation was never heard by the Supreme Court.) And Kavanaugh’s dissent also went even further than that.
The future justice did not simply argue that this specific DC law
should be struck down. He also suggested that nearly a decade of Second
Amendment jurisprudence should be tossed out.
Read on to see Kavanaugh's views on "strict scrutiny" vs. "intermediate scrutiny" when it comes to the Second Amendment.
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