Hot on the heels of Slate’s breathless recognition that the Supreme Court’s grant of cert in the New York State Rifle & Pistol Association case may portend a major change in Second Amendment law, fellow liberal magazine The Altantic has gotten into the act.
Echoing many of the legal points and vote-counting predictions that I have made on the NYSR&P case, liberal University of Baltimore law professor Garrett Epps predicts that this will be the vehicle by which the new conservative majority on the Supreme Court will “supersize” the Second Amendment.
In this article, Epps (and fellow liberal law professor Adam Winkler, author of Gun Fight: The Battle Over the Right to Bear Arms in America) both predict, as I have, that in deciding NYSR&P, the Supreme Court will adopt a “strict scrutiny” test that would “move the Second Amendment up into the tier of rights that are insulated from virtually any regulation; most prominent among these are free speech and religious freedom.”
Almost of necessity, the result is likely to give lower courts what they have lacked—a constitutional test that can be applied to a wide variety of handgun restrictions. And as Winkler suggested, the new conservative majority seems likely to create a test that will invalidate many local laws—and may in fact shred the entire fabric of state and local gun regulation.
He says that like it’s a bad thing.
The Rifle & Pistol case begins, then, with four virtually certain votes against the New York law—the two newcomers, Thomas, and Alito. Chief Justice John Roberts voted for the gun owners in Heller and McDonald. He may have been trying to keep the Court out of the Second Amendment area for institutional reasons since then, but that’s not likely to make him go back on his earlier votes when the time comes to throw down.
There’s a long way to go and we shouldn’t count any chickens quite yet. But the grant of cert was a very hopeful sign to those of us on the pro-2A side.
Let’s hope that (for once) these two left-leaning prognosticators are right.