It’s Time For The Supreme Court To Make States Stop Ignoring The Second Amendment

It’s Time For The Supreme Court To Make States Stop Ignoring The Second Amendment

New York City is far from the only government with unconstitutional gun control laws on the books. Nearly every court in the nation has ignored Heller and McDonald.
Cody Wisniewski
By

The most important Second Amendment case in a decade may soon be argued before the Supreme Court. Meanwhile, a chorus of Democratic presidential candidates has recently called for stricter gun control. With so much at stake in N.Y. Rifle & Pistol Association v. City of New York, at least one question remains to be answered: Will the Supreme Court actually decide this case?

New York City has some of the strictest gun control laws in the country. Current law, for instance, prohibits licensed handgun owners from transporting their handguns outside city limits. (Yes, New York City really does prohibit this.) Handgun owners are considered criminals if they merely bring a handgun to a shooting range in the next town for a round of target practice.

By subjecting NYC’s excessive regulations to constitutional scrutiny, the N.Y. Rifle case makes a good test of how far gun control advocates can go without running afoul of the lower courts. While NYC officials were comfortable with their regulation withstanding lower court scrutiny, early signs indicate they are well aware that they have gone beyond their constitutional limits—a fact the Supreme Court is not likely to miss. NYC officials already asked the Supreme Court to delay the case and are attempting to amend the law in question.

While the Supreme Court denied the request to put the case on hold, that does not mean the Supreme Court has to actually decide the case. If NYC officials successfully amend the challenged regulation, the Supreme Court could decide that there is no longer a current regulation to overturn, and therefore no need to decide the case.

But the Supreme Court must take this opportunity to weigh in on the greater constitutional issues at stake. With N.Y. Rifle & Pistol Association’s brief being filed on May 7 and amicus curiae briefs being filed on May 14, one thing is apparent: New York City is far from the only government with unconstitutional gun control laws on the books.

Petitioners and amici alike, while making a number of different arguments, reveal a consistent and concerning pattern: nearly every court in the nation has ignored Heller and McDonald. In Heller, the Supreme Court overturned D.C.’s unconstitutional handgun ban, and in McDonald, the court found Chicago’s nearly identical ban to be equally unconstitutional.

Importantly, both Heller and McDonald marked a clear transition in the Supreme Court’s approach to the Second Amendment, from a stringently limited right towards an originalist treatment that reflects the historical importance of the right.

In both of those cases, the Supreme Court recognized that the Second Amendment did not create some new right, but protected from infringement by the government a natural right that exists independent of the Constitution and Bill of Rights. In so doing, the Supreme Court looked to our nation’s history and founding, taking a deep dive into founding-era documents to examine how the Founders and Framers understood and treated the right to keep and bear arms. The court clearly laid out the method—known as the text, history, and tradition test—for lower courts to apply in all Second Amendment cases.

New Supreme Court Justice Brett Kavanaugh recognized this in his well-known dissent in Heller II (a later case reviewing D.C.’s semi-automatic rifle ban). Because of the D.C. Circuit’s treatment of the Second Amendment, then-Judge Kavanaugh wrote a lengthy dissent analyzing the Supreme Court’s opinions and explaining the analysis the court should have undertaken in applying the Supreme Court’s test. The majority, however, did not follow this approach.

The D.C. Circuit is not alone. Courts across the nation have blatantly ignored the Supreme Court’s direction. Nearly every circuit across the United States has subjected the right to keep and bear arms to an “interest-balancing” approach—weighing our natural right to keep and bear arms against the government’s interest. The Supreme Court specifically rejected such an approach. The rights at issue are simply too important.

The late Justice Antonin Scalia wrote: “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.”

This is why the Supreme Court needs to seize the opportunity before it. The lower courts have proven that they are not willing to protect our right to keep and bear arms, just like they did pre-Heller. When Heller was handed down in 2008, it effectively overruled nine different circuits.

The Supreme Court has the chance to reinforce its 11-year-old message to the lower courts: the Second Amendment is not to be weighed against governmental interests. The people have a natural right to keep and bear arms. Courts must consider that right as important as our Founders and Framers did. Until that happens, governments across our republic will continue to ignore our rights, and the lower courts will not stop them.

Cody J. Wisniewski is an attorney with Mountain States Legal Foundation, specializing in Second Amendment and property law. He is the co-author of an amicus curiae brief filed before the Supreme Court in this case, N.Y. Rifle & Pistol Association v. City of New York.
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