UPDATED: SCOTUS Takes Big 2A Case

The SCOTUS today announced that it will take a major Second Amendment case. The case comes to the SCOTUS from New York, in the 2nd Circuit. New York--like eight other Blue states--requires a gun owner to provide what the state regards as a "proper cause" for wanting to "bear arms" outside his home. The reality is that, unless you're politically connected, it becomes extremely difficult to carry a firearm in any of those states. In the case at hand, New York was denying concealed carry permits to persons who said they wanted to bear a firearm for "self defense"--a pretty traditional reason.

Thus, the issue is pretty straightforward. Can a state demand a reason why a person wishes to exercise a constitutional right: not only to "keep" a firearm (in your residence) but to "bear" it. Next up--First Amendment? Why do you want to express a viewpoint that the government regards as not "proper?"

Now, while this case is, on its face, fairly narrow, it's also possible that the SCOTUS could address related issues that go beyond the actual holding. Such issues might include the extent to which states may regulate the 2nd Amendment right to keep and bear arms more generally. For example, other states than those most directly affected by this case have various laws in place that make gun ownership--let alone bearing a firearm--difficult or somewhat expensive. These measures go beyond such relatively traditional measures such as a ban on felons owning firearms. As a result, this case is raising hopes and apprehensions on both sides of the issue.

Thus, while the terms of the grant of certiorari are very limited, that won't prevent justices from voicing their views and presenting arguments that could sway lower courts on related issues:

"The petition for a writ of certiorari is granted limited to the following question: Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment," the court said in an order.

Fox has a pretty lucid account of this case, despite the somewhat misleading headline:

Supreme Court to hear major gun rights appeal over carrying concealed handguns in public

Supreme Court agrees to hear what could be the biggest gun rights case in more than a decade

The Supreme Court announced Monday that it will hear a major gun rights case over whether ordinary citizens can be legally prohibited from carrying concealed handguns for self-defense outside their homes.

Don't you luv that phrase: "ordinary citizens"?

 

The case, brought by the New York State Rifle & Pistol Association, challenges a New York law that prohibits citizens from carrying a gun outside their home without a license that the state makes difficult to obtain.

...

The state requires license applicants to show that "proper cause exists" for a person to have one. The Second Circuit Court of Appeals ruled in August that the law is constitutional.

New York is among eight states that limit who has the right to carry a weapon in public. The others are: California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island.

Is this the right time for the SCOTUS to clear this up? A lot is riding on the decision--in the minds of "ordinary citizens." According to NPR:

... the week of March 15 to 21 was the top week for FBI background checks since 1998, completing 1,218,002 total firearms checks.

In January, more than 4 million background checks were processed, compared to the previous January when 2.7 million were done. And in February 2021, 3.4 million checks were reported; In February 2020, 2.8 million were completed.

During the entire month of March 2021, the FBI completed nearly 4.7 million background checks compared to the same month the year before, when the agency reported 3.7 million checks.

And it's not just long time owners stocking up on more guns--these amazing numbers are now being driven by first time buyers, who are also signing up for classes on use and care as well as preparing for applying to concealed carry permits. Boom times for local gun stores, who now offer services in addition to hardware:

First time gun owners, young and old from across the country, are helping to push record levels of gun sales for what looks like the second year in a row.

"My gun store has had a run like I've never seen before," said Todd Cotta, the owner of Kings Gun Center in Hanford, Calif., in the state's agriculturally rich Central Valley. "It was just an avalanche of new gun buyers for the first time."

But the central issue comes back to: Can a state restrict or ban the exercise of an enumerated right in the US Constitution? It's fundamental for our constitutional order.

UPDATE: Another decent discussion here:

Justices Thomas, Alito, and Gorsuch appear to be locks for a strong Second Amendment decision. Based on her writings as a circuit judge, ACB appears to be as well. Kavanaugh has talked a good 2A game in the past, but there have been increasing concerns as to whether his supposed conservative views would outweigh his apparent desire to remain in good standing with the Beltway chattering classes.

In granting cert today, it would appear that the pro-2A wing of the Court is sufficiently satisfied that they can now get to five…which means Kavanaugh is likely on board.

The author also makes this key observation:

More importantly, in order to decide this issue, at long last the Court will have to address the issue of what standard of review applies in Second Amendment cases. Resolution of that issue by adopting any standard stronger than the current “intermediate scrutiny” currently employed by many lower courts could open the floodgates of Second Amendment challenges to just about every gun-related restriction.

There's a strong argument to be made that the proper standard of review for any enumerated constitutional right is strict scrutiny. They beauty of strict scrutiny, if adopted, would be that virtually all firearms cases would be decided at the lowest level--and that most states would most likely fold preemptively, knowing they held a losing hand.