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What the Supreme Court’s Latest Second Amendment Ruling Means for Future Cases

The justices declined to expand gun rights, but there are indications of an appetite to do so.

May 1, 2020

A Second Amend­ment case decided by the Supreme Court Monday was origin­ally expec­ted to pit the liberal and conser­vat­ive justices against one another, but it didn’t quite work out that way.

It has been 10 years since the Supreme Court issued its last big Second Amend­ment decision, and New York State Rifle & Pistol Asso­ci­ation v. City of New York was supposed to break the silence. Some feared and others hoped that it would bring about an enlarged “right to keep and bear arms,” assisted by new appointees to the recom­posed Court. Instead, the justices sent the case back to the lower courts for further proceed­ings.

Despite the lack of a substant­ive ruling, there are still some indic­a­tions about what the future might hold. First, the case fore­shad­ows more Second Amend­ment litig­a­tion at the Supreme Court — and prob­ably soon. Second, it high­lights that there still is nuance and restraint at the high court when it comes to guns, and that could lead to moder­a­tion.

The case involved a quirky policy in New York City that had barred hand­gun owners from taking their weapons to second homes and shoot­ing ranges outside the city. That rule, the plaintiffs argued, viol­ated their Second Amend­ment rights. After the land­mark 2008 Supreme Court decision in District of Columbia v. Heller, law-abid­ing citizens have a right to possess a hand­gun in the home for self-defense. Ancil­lary to that right, the chal­lengers argued, was a right to trans­port a hand­gun to one’s home and to train to use it.

Court watch­ers thought the plaintiffs’ chances were good. But after the Court accep­ted the case, New York City revised its policy, permit­ting fire­arm trans­port out of the city, and then New York State passed a law setting statewide stand­ards that would prevent the city from rein­stat­ing the old policy. Those changes provided the plaintiffs the relief they sought.

They nonethe­less pressed on with their case, rais­ing new angles to keep it alive. Might the old law still be “live” for the purposes of receiv­ing damages, even if they didn’t ask for damages in the lower courts? Was the new law uncon­sti­tu­tional because it didn’t permit them to stop wherever they wanted on their way to or from the shoot­ing range?

It became increas­ingly appar­ent that the plaintiffs bring­ing the case — includ­ing a group affil­i­ated with the National Rifle Asso­ci­ation — really wanted another ground­break­ing Second Amend­ment decision. But on Monday, six justices — includ­ing Chief Justice John Roberts and Justice Brett Kavanaugh — refused their entreat­ies, conclud­ing that the dispute had already been resolved. In legalese, it was moot.

The fact that the Court accep­ted this case in the first place  signals that more gun cases are to come. New York City success­fully defen­ded the policy in the lower courts. In the years after the Heller decision, those lower-court decisions gener­ally served as the final word. The Supreme Court refused dozens and dozens of requests to inter­vene in Second Amend­ment cases before Justices Neil Gorsuch and Brett Kavanaugh joined the Court. It may be no coin­cid­ence that the New York case was accep­ted just after Kavanaugh replaced Justice Anthony Kennedy, who has been cred­ited with insist­ing on caution­ary language in the Heller major­ity opin­ion.

Moreover, Kavanaugh contrib­uted a short concur­rence and Justice Samuel Alito, joined by Justices Clar­ence Thomas and Gorsuch, wrote a dissent that made expli­cit their desire to inter­vene in another Second Amend­ment case. In Kavanaugh’s words, they are “concern[ed] that some federal and state courts may not be prop­erly apply­ing Heller and  McDon­ald [the case that applied Heller to state and local govern­ments]. The Court should address that issue soon.”

And indeed, after Monday’s ruling came down, no fewer than 10 Second Amend­ment cases vying for consid­er­a­tion were distrib­uted for the Court’s May 1 confer­ence, during which the justices vote on whether to add to their Octo­ber 2020 term docket. Some of those cases raise bigger issues than the ones raised by the New York one, like the consti­tu­tion­al­ity of bans on assault weapons and large-capa­city magazines, or restric­tions on carry­ing hand­guns in public.

So we are likely to see more Second Amend­ment litig­a­tion at the high court, but that does not mean that gun viol­ence preven­tion advoc­ates should despair, in part because of nuance in Kavanaugh’s concur­rence and Alito’s dissent.

The four justices who wrote or joined either of those opin­ions clearly think that lower courts should be strik­ing down more gun laws or at least scru­tin­iz­ing them differ­ently. Read­ing between the lines of their opin­ions, however, those justices might not agree about precisely how Second Amend­ment doctrine should look — whether, for example, judges should decide cases solely based on text, history, and tradi­tion, or whether they should also consider modern-day gun viol­ence and the effect­ive­ness of efforts to reduce it. Answers to doctrinal ques­tions like that will be essen­tial for future efforts to combat today’s evolving gun viol­ence prob­lems.

Moreover, an increased appet­ite among four justices does­n’t mean that gun regu­la­tions will fall like domin­oes. Yes, it takes the vote of just four justices to accept a new case, but it takes five to reach the major­ity needed to rule on it. Even if those four justices reach a consensus about expand­ing the Second Amend­ment, they will need a fifth vote if they want to set Second Amend­ment doctrine on a new course.

The views of Roberts thus will be pivotal, as he is the like­li­est swing vote in future Second Amend­ment cases. In this instance, he provided nary a clue as to his views on the bigger Second Amend­ment ques­tions. But he did show restraint, join­ing Justices Ruth Bader Gins­burg, Stephen Breyer, Sonia Soto­mayor, Elena Kagan, and Kavanaugh, and refus­ing to expand the Second Amend­ment at the expense of another import­ant consti­tu­tional prin­ciple — the “moot­ness doctrine,” under which courts won’t decide a case if the dispute no longer exists. We will have to wait a little longer to see whether that restraint carries over to the next big Second Amend­ment case.

Eric Ruben is an assist­ant professor of law at SMU Dedman School of Law and a Bren­nan Center fellow. He co-filed a friend-of-the-court brief on behalf of neither party in New York State Rifle & Pistol Asso­ci­ation v. City of New York.