Supreme Court’s Second Amendment Decision Demands Courts Look to History, Tradition
The decision of the Supreme Court regarding the Second Amendment requires lower courts to consider both history and tradition.
The Supreme Court’s decision on the Second Amendment last Thursday was narrow: It invalidated a requirement adopted by six states with Democratic governors that restricted access to concealed carry licenses.
Experts predict that the new standard set by Associate Justice Clarence Thomas’ 63-page majority opinion will lead to challenges to other restrictions, including policies under consideration by Congress as part of its bipartisan gun safety package.
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A challenge to New York’s gun licensing requirements was used by the Supreme Court’s 6-3 majority to overturn a legal standard applied by lower courts in evaluating challenges to gun restrictions under the Second Amendment. Instead of adopting that standard, Thomas argued that a regulation must be “consistent with this nation’s historical tradition of firearm regulation” for it to be upheld under the Second Amendment.
Supreme Court’s Second Amendment Decision Requires To Look Into History and Tradition
A number of gun regulations may be challenged in light of the ruling, according to legal experts, if they cannot be traced back to practices or laws in effect in 1791 when the Second Amendment was ratified, or 1868, when the Fourteenth Amendment was ratified.
“Thomas says only gun regulations consistent with historical regulation of guns are permissible. Red flag laws, however, are a modern invention,” Adam Winkler, a UCLA School of Law professor and Second Amendment expert noted on Twitter. “So, too, bans on domestic abusers.”
Two such measures were included in the gun control bill that passed the Senate late Thursday following the Supreme Court’s ruling. In light of the recent mass shootings in Buffalo, New York, and Uvalde, Texas, this legislation offers financial incentives to states to pass red flag laws. Those who have been convicted of domestic violence would also be barred from purchasing firearms.
It was a century-old New York law requiring residents to have “proper cause” (a need for self-protection greater than most people could demonstrate) to carry a handgun that was at issue in the Supreme Court.
The court’s decision to invalidate the mandate paves the way for immediate challenges to laws of a similar nature in several states, including California, Maryland, New Jersey, Hawaii, and Massachusetts.
Given the court’s prior Second Amendment rulings and the questions posed by the more conservative justices in November, the outcome was not unexpected. In two separate decisions in 2008 and 2010, a 4-4 Supreme Court majority ruled that Americans have a constitutional right to possess a handgun in their homes, overturning bans in Washington, D.C., and Chicago.
Before Thursday’s decision, however, it was unclear to what extent the court would go to expand that right outside the home.
“Does it put other regulations at risk? It does. There’s no question that it does,” said Jeremy Paul, a professor at Northeastern University School of Law.
Yet, according to Paul, it is still not clear which regulations are most at risk. He speculated that Chief Justice John Roberts and Associate Justice Brett Kavanaugh, two members of the court’s conservative wing, might hold the key to the decision.
In a dissenting opinion Thursday, Kavanaugh reiterated his view that the court’s historical analysis does not give courts free rein to overturn all existing gun regulations, a view shared by Chief Justice Roberts. Kavanaugh argued that the decision does not preclude states from enacting laws that restrict gun ownership or require permits to carry a concealed weapon, for example in the case of people who are mentally ill.
The Supreme Court just made it clear our Second Amendment constitutional rights SHALL NOT BE INFRINGED.
Americans have a right to carry a firearm for self-defense outside their home. Period!
— Rep. Lauren Boebert (@RepBoebert) June 23, 2022
Paul argued that the concurrence was significant because it suggested that a majority of the Supreme Court (three liberal justices plus Kavanagh and Roberts) might support regulations like red flag laws and licensing requirements like mandatory training, despite the fact that these rules have no clear roots in the United States’ history of regulating firearms.
Historic prohibitions on carrying guns to “terrorize others” and what that may mean today may also spark a legal battle.
Because of the Supreme Court’s 2008 and 2010 gun rulings, lower courts now use a two-step process to determine whether a gun law is constitutional. The right to keep and bear arms is protected by the Second Amendment, and the courts would first determine if a particular gun law infringed on that right “as originally understood” by the Constitution’s authors. If this were the case, the law might be upheld.
However, if it did not, or if the historical evidence on this question was ambiguous, then courts would proceed to step two, which involves balancing the extent to which the law burdens an individual’s Second Amendment right against the government’s interest in doing so.
Thomas argued in court that “despite the popularity of this two-step approach, it is one step too many.”
Those who advocate for the right to bear arms have been critical of the two-step process for some time.
“The implications for gun rights litigation are massive,” Stone said. “Judges will now have to admit that the Second Amendment means what it says and rule accordingly. This spells doom for numerous state and federal gun laws and regulations.”
“There is a long and deep tradition of regulating firearms in the United States, a broad range of historical gun laws that we will be drawing on as we defend gun safety laws from expected renewed attacks,” said Eric Tirschwell, executive director of Everytown Law, which advocates for gun control. “We remain optimistic that the vast majority of gun safety laws will withstand a constitutional challenge, even under the court’s new test.”
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