A new U.S. Supreme Court is in town, so to speak, and it has just agreed to hear a gun control case that will help define the scope of the Second Amendment. This is the moment advocates on both sides of the gun control debate have been either waiting for or dreading, depending on their perspective.
This is the moment advocates on both sides of the gun control debate have been either waiting for or dreading.
The case, which will be argued in the fall, challenges New York’s law that places limits on a person’s ability to obtain a license to carry a gun outside of the home. The law requires those individuals show a “proper cause” and an “actual and articulable” reason to carry the gun outside the home. More than a half-dozen other states have similar laws.
The Supreme Court will make its decision against a backdrop of a country grappling with routine mass shootings. This also marks the first time in more than a decade that the nation’s high court has dipped its collective toes into one of the most pressing and controversial legal issues facing our country. Advocates of more gun control measures have reasonably worried for years about the next time the court takes up a big Second Amendment question. But now, with the addition of three conservative justices appointed by former President Donald Trump — Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — that worry has turned to outright terror.
In 2008, Justice Antonin Scalia authored a groundbreaking opinion for a 5-4 majority of the court. Remember, at that time the court leaned conservative by one, sometimes two votes. Today’s court tilts decidedly conservative by a supermajority of 6-3. In that 2008 case, District of Columbia v. Heller, the court created or reaffirmed (depending on your perspective) an individual right to keep guns in your home for self-defense.
Today’s court tilts decidedly conservative by a supermajority of 6-3.
Since 2008, the court has avoided big Second Amendment cases. This may be in part an effort to turn down the heat on perceptions that the Supreme Court is merely another political body. Over the course of the last decade, since the Heller decision, not only do we have three new conservative Supreme Court justices but we have a Supreme Court that must defend itself, its legitimacy and the legitimacy of its members.
When Scalia died in February 2016, the United States Senate, led by then-Majority Leader Mitch McConnell, R-Ky., refused to give President Barack Obama’s nominee for the seat, now-Attorney General Merrick Garland, a hearing. The Senate waited to hold confirmation hearings for the seat until Trump was inaugurated and nominated Gorsuch.
Then there was Kavanaugh’s nomination. During his confirmation hearings, psychology professor Christine Blasey Ford accused Kavanaugh of sexual assault when he was a teenager, which he denied. Kavanaugh’s ensuing testimony can be described at best as angry and at worst as irate, certainly unbecoming of a judge.
Finally, there was the controversial nomination of Barrett. Justice Ruth Bader Ginsburg died in September, less than two months before Election Day, when Americans were already receiving early voting ballots. This time, McConnell did not hold the seat open until after the election, but quickly held confirmation hearings for Barrett.
Now that conservatives have solidified their supermajority on the court and we have at least some breathing room from the bruising confirmation hearings, it is easy to see why this is the moment at least four justices decided to take up New York’s gun control law. (It takes four votes to decide to hear a case that has been applied to the Supreme Court.)
Some of the justices have been itching for such a case. Justice Clarence Thomas, perhaps the most conservative member of the court, has complained about the court’s apparent unwillingness to take up Second Amendment cases. Three years ago Thomas wrote, “The Second Amendment is a disfavored right in this Court.”
If the fears of gun control advocates everywhere come true and the conservative supermajority of the court rules the way we all expect a conservative supermajority to rule — i.e., against this New York gun control measure and in favor of a more expanded reading of the Second Amendment — it is likely a safe bet, given the justices’ past decisions, that New York’s law is all but doomed. The real question will be how broadly or narrowly the majority writes its decision; whether it makes broad pronouncements about individual rights under the Second Amendment or whether it takes pains to confine its decision only to the law at issue. That will determine how much room gun control advocates have in the future to push for and pass new legislation. The Supreme Court is the final word on what the Constitution means. In response to a mass shooting seven years ago, the satirical website The Onion ran an article with the headline “‘No Way to Prevent This,’ Says Only Nation Where This Regularly Happens.” It is beyond maddening that the headline is even more applicable and urgent today. Even assuming our lawmakers could gather the political will to act, they cannot simply pass a legislative override for such a decision. The Supreme Court is the final word on what the Constitution means. If at least five members of the court conclude that New York’s law offends the Constitution, then it does. What is left for gun control advocates? They can carefully and narrowly craft state and federal legislation that does not address the issues brought up by this New York law. They can also wait, and wait, and wait, for a new court that might overturn such a decision. A reminder to people who opt not to go to the ballot box on Election Day: The power that the president has to appoint federal judges and Supreme Court justices, and that the Senate has to confirm those judges and justices, ripples through the most important aspects of our daily lives. Presidents and federal lawmakers may feel removed from our day-to-day activities, but their actions are not.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
