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  • Greg Gilman

The Future of the Second Amendment Under Trump’s Supreme Court

On September 13th, 2019, the Supreme Court issued their docket of cases to hear for the October 2019 term. These upcoming cases span across several polarizing policy issues, including Louisiana’s newly implemented restrictions on abortion, LGBTQ workplace discrimination, and the future of citizenship for the “Dreamers” enrolled in the Deferred Action for Childhood Arrivals (DACA) program. However, in the wake of an unprecedented tide of mass shootings, perhaps the most consequential case on the Court’s docket is New York State Rifle & Pistol Association v. City of New York. On October 1st, the Court denied New York City’s Suggestion of Mootness and scheduled the first oral argument for December 2nd. As the Court’s first Second Amendment case since McDonald v. City of Chicago in 2010, their ruling will set the precedent for the future of individual gun ownership rights in the United States.

The State of New York is notorious to Second Amendment advocates for having some of the most stifling restrictions on firearm holders. In this upcoming case, the New York State Rifle & Pistol Association is challenging the rules surrounding the borderline unconstitutional ‘Possess on Premises’ handgun licenses, which are granted primarily to citizens wishing to possess a handgun inside of their home. These permits are listed with a specific address, and the handgun cannot be legally removed from said address unless being transported directly to or from a list of seven firearm ranges, all of which are located within New York City. These handguns also must be kept at home, locked in a safe, and unloaded. The plaintiffs charge that the city’s restrictions imposed on premises licenses violate their Second Amendment rights, complaining that they cannot bring their guns to ranges or competitions in New Jersey, or to homes outside of NYC but inside of New York State. Although these laws have since been repealed by the New York State Legislature, and New York City has contended that the case is moot, the Supreme Court has opted to take the opportunity to weigh in.

Under D.C. v. Heller (2008), the Supreme Court overturned restrictions on felons and carrying firearms in certain places. Under McDonald v. Chicago (2010), SCOTUS determined that the Second Amendment was indeed a right incorporated to the states because the individual right to possess and use firearms for traditionally lawful purposes is fundamental to the American “scheme of ordered liberty and system of justice.” However, in subsequent years, the Court has been hesitant to expand upon their protection of gun ownership. In the past decade, the Democrat-controlled House of Representatives passed bills to expand background checks and red-flag laws, and the Supreme Court has recently refused to hear several challenges against Appeals Court or State Court Second Amendment rulings. The Court has instead appeared content to allow states to largely implement their own gun control policies. But, their newfound decision to address the Second Amendment value of New York City’s handgun laws indicate that they may be willing to expand upon their previous protections of gun ownership and transportation. Should the Court decide to side with the plaintiff, they could apply a process known as “strict scrutiny” to any regulation of Second Amendment rights that would require legislatures to make the case why any regulation is necessary to further a “compelling government interest.” This would in turn likely strike down New York City’s regulations, as well as make future regulations incredibly difficult to pass.

Due to Donald Trump’s appointment of conservative Associate Justices Brett Kavanaugh and Neil Gorsuch, the Supreme Court’s ideology has shifted to the right, making it more likely that they will side with the historically conservative opinions issued under D.C. v Heller and McDonald v. Chicago. Despite the Court’s apparent predisposition in favor of expanding the Second Amendment, public opinion has largely shifted towards more comprehensive regulation in response to over two thousand mass shootings in the past decade. Attorneys for March for Our Lives, a youth-led social movement founded after the 2018 shooting in Parkland, Florida, have filed an amicus curiae brief urging the Court to keep in mind public opinion. Nevertheless, the judiciary is constitutionally designated to be the most independent branch of government, and its Justices are ultimately mandated to interpret the law as they believe it is written, regardless of public sentiment. While Gorsuch’s replacement of Antonin Scalia, a longstanding bastion of conservatism and constitutional originalism, did not significantly upset the Court’s ideological leanings, the same could not be said about Anthony Kennedy’s replacement, Brett Kavanaugh. While Justice Kennedy was a notably flexible swing voter who offered his support in both the Heller and McDonald cases, Justice Kavanaugh’s aggressive campaign against gun control has led the NRA to endorse him as a “major step in securing a pro-Second Amendment majority on the Supreme Court for a generation.”

Proponents of both pro and anti-gun control legislation are eagerly awaiting how the Supreme Court will use this monumental case to establish precedent for future gun legislation. The Court’s newly secured conservative majority has wasted no time in showing that they intend to share their opinions regarding state regulation of firearm use and ownership. Despite public outcry and a relentless series of tragic and deadly mass shootings, it is likely that those who want to restrict Second Amendment rights will be disappointed by the Supreme Court’s decision, which will likely swing in favor of reducing regulations and easing restrictions on firearm transportation and ownership.

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