In the movie “True Grit”, Field Marshal Rooster Cogburn is asked if the gun he wielded at a crime scene was loaded. Cogburn, played by John Wayne, answers curtly, “An unloaded and cocked rifle is useless. Something similar could be said of a Supreme Court case, especially when there is a Second Amendment case that could turn out to be one of the most impactful decisions of the term.
The court will soon consider the New York State Rifle & Pistol Association Inc. v. Bruen, more than a decade after his last major gun rights decision. The case promises to be a showdown between the Supreme Court and lower courts, which has eroded the High Court’s earlier Second Amendment rulings.
In 2008, the Supreme Court released a landmark decision in District of Columbia v. Heller, recognizing the Second Amendment as encompassing an individual right to bear arms. Two years after Heller, in McDonald v. City of Chicago court ruled that this right applied against states.
The new case concerns concealed transportation restrictions under New York Criminal Law § 400.00 (2) (f) that require the demonstration of “just cause”. The lower courts have upheld the New York law, but there are many constitutional concerns about its vague standard, such as showing that you are “of good character.” The case presents only one short and direct question – whether New York’s denial of petitioners’ concealed harbor self-defense permit applications violated the Second Amendment.
The High Court has carefully awaited the right case to address states and cities that have sought to limit gun rights. Indeed, just this week, the court dismissed a challenge to a Wisconsin law imposing a lifetime ban on the possession of firearms for former criminals, including cases involving non-violent crimes. This case and others seemed tailor-made for Judge Amy Coney Barrett, who drafted a strong Second Amendment defense in a similar case as an appellate judge.
It is often difficult to determine which side of the court provided the votes to grant review in a case. That’s not the case here. The New York case was clearly accepted by conservative judges with a view to overturning the United States Court of Appeals for the 2nd Circuit.
The selection of a New York case is particularly poignant. Some of the judges were not too happy with the Big Apple last year when city officials suddenly sought to withdraw a case from the court’s docket. Politicians in New York had passed a law that many of us considered unconstitutional, with its placing onerous limits on the transport of legal weapons from homes. These politicians have publicly banged their chests about going to the Supreme Court with the law and limiting the Second Amendment precedent; professing absolute confidence, they pleaded the law and, once again, the 2nd Circuit upheld the questionable status. The Supreme Court accepted the case for review and had to overturn the law – until New York suddenly changed the law and then quietly sought to withdraw its case before any decision was made.
The court ultimately dismissed the case, but did so over objections from three dissenting judges. It was a rare case in which the court resisted such a moot decision after one party sought to step aside – but, then, few litigants have had the temerity to do what New York has done. Judges Samuel alitoSamuel AlitoThe Hill’s Morning Report – Presented by Altria – Jan. 6 panel flexes its muscles Senator Whitehouse criticizes Alito’s speech: “You messed up your nest, not us” Breyer: Supreme Court “fallible”, but rather well served the United States SUITE, Neil gorsuchNeil GorsuchJustices assesses request for information on CIA’s post-9/11 torture program. and Clarence thomasClarence ThomasTwo conservatives step down from Supreme Court commission Biden Sotomayor says recent changes were made because male judges cut off female colleagues Why Latinos need Supreme Court reform MORE specifically called New York for “manipulating” the role by removing an unconstitutional law just before a final notice. Justice Brett KavanaughBrett Michael Kavanaugh Why Latinos Need Supreme Court Reform Feehery: Republican Congress Needed To Fight Left’s Slide Into Autocracy The Hill’s Morning Report – Featured By Facebook – Biden, Democrats To Reduce The ‘agenda PLUS joined the condemnation and added threateningly that “some federal and state courts may not properly enforce Heller and McDonald.” The Court is expected to address this issue soon, perhaps in one of the many Second Amendment cases with certiorari applications currently pending before the Court. “
The court then did just that, accepting a case with the same plaintiffs: the New York State Rifle & Pistol Association. On this occasion, however, the court is unlikely to tolerate further bait and change from state officials attempting to withdraw the case at the last minute.
While these four justices still intend to push the courts below, they only need Chief Justice John Roberts or Barrett to make a major decision in favor of gun rights.
Briefs filed in the case include groups such as the Cato Institute, which directly confronted the court about his unlawful legal absence on gun rights for more than a decade. Cato argued that “judicial inaction contributed to the demise of the Second Amendment. It’s no secret that many federal courts have engaged in systematic resistance to Heller and McDonald’s.
Many refer to the court’s statement in Heller, which recognized that “like most rights, the right guaranteed by the Second Amendment is not unlimited.” He then listed the possible “sensitive places” to deny permits to former criminals. Lower courts restricting gun rights have repeated these lines as a mantra, and the High Court appears ready to clarify this ambiguity.
Bruen has many of the same elements as Heller, including a rich historical discussion of what gun ownership has meant throughout history. Notably, English subjects in the American colonies were the first to receive written guarantees of the right to bear arms in self-defense; the settlers of the Colony of Virginia in 1607 and the Colony of New England in 1620 were subjects under royal charters recognizing this right. In England, the right to bear arms was formally declared in the Bill of Rights of 1689 which declared the right to arms to be part of “true, ancient and unmistakable rights”.
This story will weigh heavily in the court defining the right of people to bear arms in self-defense outside the home. In many ways, Bruen is the photo that was not taken last year in New York State Rifle & Pistol Association Inc. v. City of New York. Now the same plaintiffs are back, and New York has provided another perfect case for gun rights expansion. So if you are wondering if Bruen is loaded, at least four judges are likely to agree that a Second Amendment case “that is unloaded and armed is not good for nothing”.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.