The U.S. Supreme Court will take up a high-stakes Second Amendment case that experts say has the potential to expand gun rights and radically increase the number of firearms on the streets of major cities already plagued by shootings.
The nation’s highest court said Monday that it will hear an appeal on whether New York’s permit requirements for carrying guns in public is constitutional, and ultimately whether the Second Amendment protects Americans’ right to carry guns outside of their homes.
It is the first major gun-rights case the court will hear since Justice Amy Coney Barrett joined in October, swinging the political makeup of the bench to a 6-3 conservative majority.
“This is the most significant Second Amendment issue that’s been before the Court,” says Stephen Halbrook, an attorney who has represented the NRA in federal court and is the author of The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class?.
The court’s decision to review the case comes more than two weeks after President Joe Biden announced a raft of executive actions to curb gun violence—a move that gun-safety activists at the time hailed as a victory, in the wake of a spate of mass shootings, including two high-profile incidents in Atlanta, Ga. and Boulder, Colo. that left a total of 18 people dead.
“It’s odd because the gun-safety reform movement has new life just at the same time that the Supreme Court is prepared to expansively read the Second Amendment,” says Adam Winkler, a UCLA constitutional law professor and author of Gunfight: The Battle Over the Right to Bear Arms in America.
“We have this weird disconnect,” Winkler says. “The country’s moving in one direction, and the Supreme Court is moving in the other.”
In eight states, including New York, those who want a permit to carry a concealed weapon in public must prove to the licensing authority issuing the permit that they have a good reason to carry one, which can include self-defense.
The case was brought by two men in New York—with the backing of gun rights groups including the National Rifle Association (NRA)—after they were denied requests for permits to carry firearms outside their home because the licensing officer determined they had failed to show they needed the weapons for self-defense.
“Shall-issue” laws in over 20 states generally allow people to get a concealed-carry license as long as they don’t fall into a legally non-permitted category, such as having a felony conviction. But “may-issue” concealed-carry state laws, like the New York law in question, only grant permits if the applicant can prove they have a sufficient reason for wanting one. Roughly 90 million Americans live in states that have may-issue laws, according to Duke Law School professor Joseph Blocher.
The suit challenges the rule requiring petitioners provide “proper cause” in order to be given a concealed-carry permit, arguing that the standard is too high and the court must “resolve this critical constitutional impasse and reaffirm the citizens’ fundamental right to carry a handgun for self-defense.”
The Court has not ruled on a gun-rights case since its landmark decisions in 2008 and 2010 upholding that the Second Amendment protects a private citizen’s individual right to possess a firearm that is in “common use,” and to use that firearm for “traditionally lawful purposes,” such as self-defense at home.
Several gun-safety and legal experts say the Court’s timing is likely not a coincidence. Russell Wheeler, a visiting fellow in governance studies at the Brookings Institution, speculates that the court may be taking the case now because Barrett “likely gives the conservatives a reliable pro-gun rights vote.”
The fact that the Supreme Court is taking on this case after years of turning away numerous Second Amendment-related appeals, Winkler adds, suggests the justices—particularly the Trump-nominated Barrett, Brett Kavanaugh and Neil Gorsuch—are interested in expanding the scope of the Second Amendment.
It’s unclear how the court might rule, but Winkler says the repercussions could be deadly if the court decides the current law is too strict. He cited a 2017 examination of state-level crime data by Stanford Law School Professor John Donohue, which found that states saw an estimated 13 to 15% increase in violence crime in the decade after enacting a right-to-carry concealed handgun law.
Meanwhile, in New York City alone, shootings surged 97% in 2020 and are still rising, the New York Police Department has said. There were 1,531 shooting incidents last year, compared with 777 in 2019. And despite a pandemic that kept much of the U.S. at home, 2020 was one of the nation’s most violent years in decades. More than 19,000 people were fatally shot in 2020—the highest death toll in more than 20 years, according to data from the Gun Violence Archive, a nonprofit that tracks gun violence incidents.
“Court watchers have been waiting for the court to take a big Second Amendment case. Finally they did it, and they picked a big one,” Winkler says. “The gun-safety reform movement has a lot to be concerned about.”
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