Supreme Court about to hear the biggest gun-control case in a decade

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A woman tries out a rifle at a National Shooting Sports Foundation’s Shooting, Hunting, Outdoor Trade Show in Las Vegas.

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Matt Post is too young to remember the last time the Supreme Court heard a case over gun control.

But the 20-year-old college student is hoping the nine justices think of him and other members of the so-called mass-shooting generation when they consider the scope of the Second Amendment during arguments in a landmark dispute next week.

“The shooting in Sandy Hook happened when I was in sixth grade, and I think it’s hard for people who didn’t grow up with this to learn how it weighs on you,” Post, an activist with March for Our Lives, said in a recent interview.

“Someone can just come in and slaughter your classmates,” he said. “The Constitution guarantees you a better childhood than that.”

On Monday, the Supreme Court is set to hear its first major Second Amendment case since 2010.

The dispute, over a since-repealed New York City handgun regulation, comes amid heightened criticism of the nation’s uniquely permissive gun laws. A decision is expected by July, in the midst of the 2020 presidential election.

Gun-control advocates worry that a ruling could spell doom for measures that have been considered lawful by appeals courts in the past nine years, like assault weapon bans and restrictions on gun use outside the home.

For gun-rights supporters, the case is a welcome return to the Second Amendment for a court that they see as having abandoned such cases for too long.

While the top court has repeatedly taken cases featuring other aspects of the Bill of Rights, some conservatives, including Justice Clarence Thomas, have lamented what they see as the justices treating the Second Amendment as a “second-class right.”

With a divided Congress unlikely to reach a deal on gun legislation any time soon, the most important vote on the issue for the foreseeable future is likely to come from the justices.

The case has already spurred fighting among lawmakers. After a group of Democratic senators led by Sen. Sheldon Whitehouse, D-R.I., filed a brief in connection with the case warning the court it could be “restructured,” Senate Majority Leader Mitch McConnell, R-Ky., and the rest of the Republicans in the Senate told the justices that they would protect them.

The composition of the court has shifted since the court last heard a case involving gun legislation. Justice Anthony Kennedy has since departed, and Justices Neil Gorsuch and Brett Kavanaugh have joined it, forming a reliable conservative majority. Kavanaugh in particular has expressed an expansive view of gun rights.

The court established a loose framework for gun legislation in a pair of cases decided in 2008 and 2010. In the 2008 case, D.C. v. Heller, the court found that the Second Amendment protected gun ownership unconnected with service in a militia. In 2010, the court applied that ruling to the states, in McDonald v. Chicago.

Hannah Shearer, who researches Second Amendment litigation at the Giffords Law Center, an anti-gun violence group, said that since 2010 lower courts have treated the provision similarly to the First Amendment.

“They consider whether the law burdens Second Amendment rights, and whether there is a compelling public safety reason that is supported by evidence,” Shearer said.

The worry among gun-control proponents, Shearer said, is that the court could do away with considerations of public safety, known as a balancing test.

“It would mean that judges couldn’t consider the public safety need for any given gun law and would only be looking at whether the law is supported by early American history,” she said.

Kavanaugh is on record as an opponent of the balancing test, having laid out his views in a 2011 dissent issued while a federal appeals court judge in Washington.

“Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny,” he wrote.

Thomas, who has been vocal about gun rights, and Gorsuch, whose approach to the law focuses heavily on how the Constitution was understood in the 18th century, are also likely votes in favor of broadening the reach of the Second Amendment.

So, too, with fellow conservatives Chief Justice John Roberts and Justice Samuel Alito, who were part of the Heller and McDonald majorities, though their records are less certain.

A sliver of hope for those on the left is that the court could drop the case altogether, due to a recent move by New York.

The suit was brought by a group of gun owners living in New York City and the New York State Rifle & Pistol Association, an NRA-affiliate group, which challenged a New York City regulation barring the transport of handguns outside the home, including to a second residence.

But that rule, which was believed to be the only such regulation of its kind in the nation, no longer exists. After the Supreme Court agreed to take up the case, New York rushed to do away with the rule, seeking to avoid a ruling that could weaken gun control laws around the country.

Attorneys for New York argued that the city’s move made the case “moot,” or no longer active, and urged the court to dismiss the matter. But the court has not done so, and the gun owners argue that their case is still live because the city could still penalize them for past violations.

The Trump administration, which is supporting the gun owners before the court, has argued that the case is still worth hearing because the gun owners could theoretically seek financial damages, though they haven’t done so yet.

In any case, the justices have decided to move forward with oral arguments. They have warned the attorneys who will be arguing on Monday that they should be prepared to debate whether the case is still active.

“We hope and expect that the court will dismiss this case as moot,” Shearer said.

If it does so, the legal landscape for gun legislation will likely be unchanged, at least for now.

The case is New York State Rifle & Pistol Association v. City of New York, New York, No. 18-280.



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