Lyle Denniston looks at two Second Amendment cases under consideration at the Supreme Court later this month that would clarify questions posed by the National Rifle Association.
There is "a growing line of court of appeals decisions that, while stopping short of holding that there is no Second Amendment right outside the home, consistently reach the same result by deeming any right to bear arms in public to be, at best, outside the Second Amendment's 'core' and then balancing it away under an anemic form of intermediate scrutiny."
– Charles J. Cooper, a Washington, D.C., attorney for the National Rifle Association, in a brief filed at the Supreme Court on Monday, urging the Justices to strike down a law that bans minors from carrying a handgun in public, beyond the home.
The Second Amendment, at its core, spells out not one, but two, rights when it protects "the right of the people." There is a right to "keep" a gun, there is a right, to "bear" a gun. There is an "and" between the two in the text, so that might well be taken as a significant indication that these are separate rights.
The Supreme Court in 2008 made it clear that the right to "keep" a gun is a personal right, and that it means one has a right to keep a functioning firearm for self-defense within the home. But it has refused repeatedly since then to take on the question of whether that right exists also outside the home. If there is a separate right to "bear" a gun (and the Court, in fact, did say in 2008 that the two rights were separate), it has not said what that means.
The National Rifle Association, and some of its members, are now pressing the Supreme Court to answer that question. They are doing so in two cases testing whether the federal government and the states can restrict the rights of minors to possess a gun outside the home. The Court is expected to take its first look at those cases later this month, to decide whether it will hear either or both of them. The federal government, once again, is urging the Court to bypass those cases, as it has done with perhaps a half-dozen others seeking clarification of the Second Amendment's scope.
In a case from Texas, the NRA's lawyers have reduced to elementary constitutional logic the question of what a right to "bear" guns means: "The explicit guarantee of the right to 'bear' arms would mean nothing," the NRA's filing argued, "if it did not protect the right to 'bear' arms outside of the home, where the Amendment already guarantees that they may be 'kept.' The most fundamental canons of construction forbid any interpretation that would discard this language as meaningless surplus."
While the NRA and its lawyers are sharply critical of the lower federal courts for failing to explicitly extend the Second Amendment beyond the confines of one's home, there have been a couple of breakthrough decisions doing just that. For example, the Seventh U.S. Circuit Court of Appeals based in Chicago did so when it ruled unconstitutional an Illinois law banning the carrying of guns in public, at least when that was for the purpose of self-defense. That decision had seemed headed for the Supreme Court, but the state legislature chose to eliminate the ban and the appeal prospect vanished.
The lower courts that have declined to enlarge the right have seemed to be convinced that it would be a bold step to do so, and some have suggested that it should be up to the Supreme Court to make the ultimate decision on that point. The Court might be expected to step in to resolve the issue, if it were convinced that there is actually a true split on it among lower courts.
In the new NRA cases now awaiting the Justices' attention, separate groups of judges on the Fifth U.S. Circuit Court of Appeals, based in New Orleans, rejected NRA challenges to the federal and state laws restricting minors' access to guns. The case involving the Texas law is explicitly about a right to carry a handgun in public, at least for minors. In that state, they may own a handgun, but without a license to carry it in public – for which they are ineligible because of their age – they may have such a weapon only at home.
One of the reasons why the Justices might find the NRA challenges more appealing cases to review is that, in both, the federal appeals court came very close to creating an entirely new category of individuals ineligible to "bear" arms, merely because of their age. In both of the decisions at issue, the appeals court said it was "likely" that they were not protected at all under the Second Amendment, or under the separate parts of the Constitution that guarantee all individuals equal legal rights.
If the Justices do agree to return to the ongoing controversy over the reach of the Second Amendment, it is probably too late in the current term to add that to the docket. If granted review, it would very likely go over to the next term, starting in October.