Faculty Journal Posted on Thursday, February 21, 2019

The Supreme Court and Second Amendment Challenges

Walter E. Volkomer Emeritus Professor

Columbine High School, Littleton, CO. April 20, 1999: thirteen killed; Pulse Night Club, Orlando, FL. July 12, 2016: 49 killed; Marjory Stoneman Douglas High School, Parkland FL. February 14, 2018: 17 killed.

There have been too many examples of such shootings in the United States in recent years. After each incident, the majority of Americans have demanded legislation that would curb the possession and use of weapons.

According to Gallup’s 2018 public opinion polling, 61% and 67% of Americans favor stricter laws on gun ownership. These figures are the highest in more than twenty years.

But there are several obstacles to enacting new weapons legislation, despite popular support. Opponents of such laws are numerous and represented by the National Rifle Association, a powerful and well-organized lobbying group. Even more importantly, is the Second Amendment to the Constitution and how it is interpreted by the United States Supreme Court: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

There are many parts of the United States Constitution that are unclear, but few reach the level of ambiguity of the Second Amendment. Does the provision protect the right to serve in a militia or the right of an individual to “keep and bear arms?”

Unfortunately the United States Supreme Court has provided only limited help in clarifying the meaning of this provision of the Constitution. The Court decided only a few Second Amendment cases during the nation’ first two centuries, all of which had limited long-term significance.

It was not until the first decade of this century that the Supreme Court decided two cases – both by 5-4 votes – that gave meaning to the Second Amendment: Heller v. District of Columbia (2005) and McDonald v. Chicago (2010).

In Heller, the Supreme Court considered the constitutionality of a District of Columbia ordinance that regulated the possession of weapons in two ways. First, it made it a crime to carry an unregistered firearm unless the person had obtained a one year license from the city’s chief of police. And, second, the ordinance required individuals who lawfully owned a firearm for use in the home to keep the device unloaded and the weapon either bound by a trigger lock or disassembled.

By a 5-4 vote, the Court found that the Second Amendment was a fundamental personal right and declared most the DC law unconstitutional. With gun ownership considered a fundamental right, any law seeking to restrict the Second Amendment is subject to strict scrutiny and not the less demanding rationality test.

McDonald is of great importance because, for the first time, the Supreme Court applied the Second Amendment to the states by incorporating it in the due process clause of the Fourteenth Amendment. Most gun laws are enacted by state and local governments, not by Washington.

Surprisingly, the Supreme Court has not decided any major Second Amendment cases since McDonald. Indeed, on two occasions in 2018, the Court declined to hear Second Amendment challenges to legislation that limited gun ownership.

One important consequence of the Court’s failure to consider new cases since Heller and McDonald is to leave the lower federal and state courts adrift in deciding Second Amendment cases. With few clarifying principles courts have reached different conclusions about the meaning of the Second Amendment. Thus, one federal circuit court of appeals gave an expansive interpretation to Heller by finding that the right of self-defense is not limited to the home. Another circuit court took a much narrower view of the amendment. It upheld a state law that banned one popular form of rifle, holding that such weapons had no Second Amendment protection.

The Supreme Court’s almost decade-long abstention from hearing Second Amendment came to an end in January 2019. The nation’s highest court agreed to hear a constitutional challenge to a New York City ordinance that made it illegal to transport a licensed, unloaded and locked handgun to a firing range outside the boundaries of the city. The case will decide for the first time whether Heller applies to situations outside of the home.

It is always precarious to predict future Supreme Court decisions, but the appointment of Brett Kavanaugh to the Court in October 2018 increases the chances of the Court upholding a broad interpretation of Heller. His view on Second Amendment issues were clarified during his tenure on the federal Court of Appeals for the District of Columbia. Justice Kavanaugh strongly dissented from a ruling by that Court which upheld a District of Columbia ban on certain types of rifles.

There are two main Second Amendment issues that must be clarified by the nation’s highest court. First, it must decide whether the amendment protects the right to possess assault rifles and, second whether it applies to weapons possessed outside of the home. This would include, for example, laws that protect the right to carry concealed weapons or to openly carrying them in public.

There is almost no chance that the Supreme Court will overturn Heller at any time in the foreseeable future. The appointment of Justice Brett Kavanaugh can only serve to support and strengthen the precedent established by Heller.

But this does not mean that the Supreme Court majority will invalidate all laws regulating the possession of guns. In his opinion for the Court in Heller, Justice Antonin Scalia wrote: “[L]ike most rights, the right secured by the Second Amendment is not unlimited.”

Let us hope that the Supreme Court finds within the language of the Second Amendment the power of government to deal with the scourge of gun violence in the United States.

Dr. Walter E. Volkomer is an Emeritus Professor for the Department of Political Science at Hunter College. His areas of expertise include American Constitutional Law and the Bill of Rights.