The New Supreme Court Sets its Sights on the Second Amendment


The Supreme Court recently announced it will hear its first Second Amendment case since 2010, raising the question of whether the Court’s newly conservative majority is on the verge of erasing a decade’s worth of gun safety regulations.

In this lawsuit, New York State Rifle & Pistol Association Inc. v. City of New York, the NRA and other plaintiffs are challenging a New York City law that prohibits individuals in possession of a “premises” license, the narrower of the two types of firearm licenses the city offers, from bringing their guns to public places beyond their property. While the law at issue applies only in New York, the case raises general questions about how Second Amendment cases are decided that could have a broader impact.

The New Supreme Court Is Poised to Set a Dangerous Precedent

“This is a warning that we could see a new, more activist Supreme Court taking steps to limit gun safety laws at a time when the American people are demanding action to prevent gun violence,” said Hannah Shearer, Giffords Law Center’s Second Amendment Litigation Director. “With a number of other gun safety cases in the pipeline, this is the first signal that Justice Kavanaugh may lead the Court to chip away at laws that have broad public support and were signed into law by leaders on both sides of the aisle.”

In a presentation delivered days before the Supreme Court’s announcement, at a Second Amendment symposium co-hosted by Giffords Law Center and Hastings Constitutional Law Quarterly, Yale Law Professor Reva Siegel drew parallels between the NRA’s activism leading up to the 2008 case District of Columbia v. Heller and the surge of gun violence prevention activism the country has witnessed over the past year.

Amidst concerns that the Court will soon take up more Second Amendment cases to further expand Heller—which ruled that an individual has the constitutional right to keep a handgun in the home for self-defense—Siegel and others have raised questions about how the Court will react to the wave of gun safety momentum that has swept the country since Parkland, leading to 67 new gun safety laws in 2018 and well over 90 percent of Americans supporting measures like universal background checks.

“The Supreme Court’s appetite for expanding the Second Amendment, if such an appetite develops, will be wildly out of sync with the mood of the country,” wrote New York Times columnist Linda Greenhouse in early January 2019.

The Second Amendment: Not a “Second-Class Right”

In her opinion piece, “A Call to Arms at the Supreme Court,” Greenhouse effectively refutes the argument that the Second Amendment has been treated as a “second-class right” in the courts, an argument that has become a rallying cry of a gun lobby eager to denounce any and all gun safety regulations as unconstitutional.

The application of the phrase “second-class right” to the Second Amendment originates with Justice Samuel Alito’s opinion in McDonald v. Chicago in 2010. As Greenhouse points out in her opinion piece, it has been used most frequently by Justice Clarence Thomas since then, particularly in instances in which the Court has declined to take on new Second Amendment cases.

At a panel during the recent Second Amendment symposium, Jonathan Lowy, Director of the Legal Action Project at the Brady Center to Prevent Gun Violence and co-author of the paper “The Right Not to Be Shot,” pointed out that “all constitutional rights are constrained by the court when there are serious public safety interests at stake.”

“[the Second Amendment] is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

As Lowy and others have noted, the right to bear arms is not just about having lethal firearms—it’s also about using them. Exercising the right to bear and use firearms can have a detrimental effect on the exercise of other constitutional rights, like to right to peaceably assemble, to worship, and to speak freely.

When courts approve gun safety laws that protect people who are exercising these and other rights, they aren’t treating the Second Amendment as second-class—they’re making sure to safeguard all of the rights in our Constitution. In a panel at the Second Amendment symposium, Washington University School of Law Professor Gregory Magarian expanded on this idea by suggesting that Second Amendment interpretations should be informed by First Amendment law and the differences between gun rights and speech rights.

“The right to keep and bear arms is predicated on the ability to do great physical harm,” Magarian said. “That’s what guns do. So the right to keep and bear arms is never going to have even the partial claim to a relatively innocuous character that the right to the freedom of speech has.” Magarian also noted that the First Amendment doesn’t protect speech that incites violence—further proof that gun safety laws aimed at reducing violence are consistent with limits imposed on other rights.

The Future of the Second Amendment

As Justice Antonin Scalia wrote in his majority opinion in Heller, “[the Second Amendment] is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

The idea that the highest court in the land might be poised to stray from Justice Scalia’s guidance and adopt an absolutist view of the Second Amendment right—one that fails to take public safety into account—should worry any American who wants to see a safer future for our country.

“This announcement involves a law that only applies in New York City,” said Hannah Shearer of the Court’s decision to hear New York State Rifle & Pistol Association Inc. v. City of New York. “But this moment is a reminder to the Supreme Court that eroding strong laws is out of step with the overwhelming majority of the American public who support measures to make our communities safer.”

To learn more, read Second Amendment Litigation Director Hannah Shearer’s Interested Parties memo and Giffords Law Center’s factsheet on the Supreme Court and the Second Amendment.