Why the Second Amendment is problem for the Supreme Court

Perhaps Supreme Court Justice Clarence Thomas is now sleeping a little better these days. Dissenting from the refusals by the Supreme Court in a number of cases to entertain appeals involving the scope and meaning of the Second Amendment over the last several years, he has accused his colleagues of making the right to bear arms a “constitutional orphan.”

But that changed this month, when the Supreme Court agreed to hear an appeal from the Second Circuit regarding the constitutionality of a New York City ordinance. The case, New York State Rifle and Pistol Association versus City of New York, concerns a law that bans residents with certain firearms licenses from taking their guns out of the city, even when the guns are unloaded and the ammunition placed in a separate container.

{mosads}Some suggest that this case gives the Supreme Court the opportunity to articulate precisely how the lower courts should interpret the Second Amendment. They also suggest that, given the latest addition of Justice Brett Kavanaugh, its interpretation could be expansive. Indeed, gun rights advocates have been hoping for the Supreme Court to take a Second Amendment case since it last addressed the issue in Otis McDonald versus City of Chicago back in 2010. In that case, the Supreme Court decision held that the individual right to bear arms “in case of confrontation” is enforceable against state and local governments.

But these advocates, along with Justice Thomas for that matter, could as easily be disappointed by New York State Rifle and Pistol Association versus City of New York. The case is about an idiosyncratic law, one that affects only the citizens of New York City, and one that might be difficult to justify even under the most deferential standard of judicial review.

It is important to remember that fights over the meaning of individual constitutional rights are really fights about how much leeway the Supreme Court will give legislatures to regulate those rights. What makes most individual constitutional rights fundamental is the unwillingness of the Supreme Court to allow those rights to be diminished by state and federal political actors. This is where the Second Amendment poses a significant problem for the Supreme Court. A clear majority of citizens, whether measured across the nation or by each state, favors rational firearms regulation, even more so today than when the Supreme Court last visited the issue. Since then, mass shootings have become all too common.

It is not unreasonable to think that the widespread impact of these mass shootings have kept Justice Thomas from the votes he needed for the Supreme Court to agree to hear a Second Amendment case. So it may be relevant that the New York City ordinance is not one associated with reports of gun violence and, as the plaintiffs maintain, the restriction it mandates may not even make sense on its own terms. While this case provides the Supreme Court the chance to say something more about what the Second Amendment means, given the limited reach of the law in question, the Supreme Court conceivably could resolve the constitutional question without saying a great deal about the right to bear arms, much less articulating an expansive understanding of that individual right.

Chief Justice John Roberts has strived to steer the Supreme Court through waters made more treacherous by the potential for some of his colleagues to favor broad rulings in constitutional cases, not to mention the unkind attention from the political branches in recent years. So we should not be too surprised if he is able to cobble together a majority willing to resolve the dispute over New York City ordinance with a decision that is neither deep nor wide, but that incrementally advances Second Amendment.

Lawrence Friedman is professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”