As you’d expect, Second Amendment orgs are pleased that the US Supreme Court is willing to take another Second Amendment case, a year after punting the opportunity last year. As the Second Amendment Foundation writes . . .
The Second Amendment Foundation today is hailing the decision by the U.S. Supreme Court to hear a Second Amendment right-to-carry case challenging New York State’s restrictive gun control law, declaring that a favorable ruling in this case will almost certainly impact challenges to similar laws in other states, which SAF and others are contesting. …
“This case was made possible by the Second Amendment Foundation’s Supreme Court victory in McDonald v. City of Chicago that incorporated the Second Amendment to the states via the 14th Amendment,” noted SAF founder and Executive Vice President Alan M. Gottlieb. “SAF’s victory in that case built the foundation for this and other lawsuits against states and localities to be heard by the Supreme Court to protect and expand gun rights, and we are proud of that.”
Gottlieb said it is certain the current makeup of the high court has opened this important door. With the addition last year of Associate Justice Amy Coney Barrett to fill the vacancy created by the passing of Ruth Bader Ginsburg, the court now has a majority of constitutional jurists who will no longer treat the Second Amendment as “a constitutional orphan,” as once observed by Associate Justice Clarence Thomas.
All no doubt true. However, the Firearms Policy Coalition is taking a slightly more cautious stance, noting that . . .
In granting the petition, the Court limited the question presented to: “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.” In comparison, the question presented in the cert petition was: “Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.”
While it’s impossible to predict how the court will rule in NYSRPA v. Bruen [originally Corlett], it’s clear that the outcome of this case will have a significant and wide-ranging impact on the right to keep and bear arms.
“The Supreme Court’s taking this case is an encouraging sign that it may begin to address the scope of the right to bear arms outside of the home, as well as the mode of analysis that lower courts should apply when reviewing Second Amendment cases,” said Adam Kraut, FPC’s Senior Director of Legal Operations. “As we argued to the Court in our brief, it is time to restore the Second Amendment’s first-class right status and put an end to lower courts’ unfavorable treatment of this fundamental human right.”
Why the caution regarding the question the Court has chosen to examine? As Josh Blackman writes at reason.com . . .
But the Court only granted review to a limited question presented:
Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.
As soon as I saw the grant, I started to scratch my head. Why did the Court rewrite the QP? Here is how Paul Clement framed the issue for the petitioners:
Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense. …
Ultimately, I am conflicted about this grant. Part of me should be ebullient that the Court finally granted a real gun case. Yet, this strange rewriting of the QP has tempered my enthusiasm. I am jaded after thirteen years of being burned in Second Amendment cases. This grant may be the last time a nine-member Court decides a Second Amendment case. Any punt here will sweep Heller to what Justice Scalia called the “the dustbin of repudiated constitutional principles.”
Click over and read Blackman’s entire post for the possible implications of the Court’s language change as well as his update regarding the change the Court made to the question it considered in the Heller case.
Long story short, this cert grant is a positive. The question is, how positive it will turn out to be.
With the change in the legal question presented, the Court could have set itself up to issue an extremely narrow opinion that will ultimately disappoint gun rights supporters by sidestepping the larger questions regarding the Second Amendment that have gone unresolved since Heller. As LKB told us, it all probably boils down to what Justice Kavanaugh is willing — or unwilling — to do.