The Supreme Court announced Monday that it will hear the New York State Rifle & Pistol Association Inc. against Corlett, a case that could alter the judiciary’s understanding of the second amendment and destroy many of the country’s gun laws.
The case concerns New York State’s 1913 Handgun Licensing Act, which mandates that anyone wishing to carry a pistol in public must demonstrate “the right reason” in order to obtain a license to do so.
The correct cause can be proven in several ways. Someone wishing to use a weapon for hunting or aiming may be granted a license that allows them to do so, although this type of license can be restricted so that the wearer is only allowed to use their weapon for those purposes. Licenses may also be given to people who do certain work. A shopkeeper may be given a limited license that allows them to keep a gun in their shop for protection, for example, or a bank messenger may carry a gun to protect themselves and the money they are carrying.
However, in order to obtain an unrestricted license to wear, the New York courts found that an applicant must demonstrate “a particular need for self-protection that is different from that of the general public or those who practice the same profession.” So someone might be able to get a license because they have a particular fear of their stalker – but someone who only wants to carry a gun because they generally feel that it would be useful if they were ever a victim of one Violent crime. can’t get a license.
Corlett plaintiffs include a New York State gun rights group and two New York men who have been denied a license to carry a pistol in public. They claim that “law abiding citizens” have a second right of amendment to carry a gun in public – and the Supreme Court, with its Conservative majority of 6 to 3, could approve them.
Indeed, Corlett could potentially slash more than a decade of court decisions interpreting the second amendment and place prohibitive limits on the ability of lawmakers to reduce gun violence.
In fairness, there is early evidence that the Court tends to limit its ruling in the Corlett case. Although plaintiffs have asked the court to rule on a broader question: “Whether the second amendment will allow the government to ban ordinary law-abiding citizens from carrying handguns for self-defense outside the home,” the judges announced Monday that they would only one solution will be found to a narrower question: “Did the state’s rejection of the petitioners’ applications for covert transmission licenses for self-defense violate the second amendment?”
Still, this narrower question is still broad enough to allow the Supreme Court to rewrite a decade of Second Amendment precedents, resolve a consensus within the lower courts that allows many guns regulations to exist, and those lower courts then to allow the process to be completed to dismantle other gun laws.
How the current Supreme Court precedents deal with the second amendment
The second amendment provides that “a well-regulated militia, necessary for the security of a free state, will not violate the right of the people to keep and bear arms,” and until recently the Supreme Court did the first 13 words of this amendment taken very seriously. As the Court stated in the USA v Miller (1939) case, the “obvious purpose” of the second amendment was to enable “militias to be effective”. Therefore, the amendment must “be interpreted and applied for this purpose”.
However, the Supreme Court largely abandoned that approach in its 2008 District of Columbia ruling v Heller, finding for the first time that the second amendment protects an individual’s right to bear arms.
While Heller marked a fundamental change in the Court’s approach to the second amendment, it was also a severely limited victory for gun rights activists. Among other things, Heller suggests that the ban on “carrying hidden weapons” is legitimate, as are “longstanding bans on the possession of firearms by criminals and the mentally ill or laws that prohibit the carrying of firearms in sensitive places such as schools and government buildings or laws that impose conditions and qualifications for the commercial sale of weapons, or prohibitions on “dangerous and unusual weapons”.
While Heller has put down the District of Columbia’s “absolute ban on handguns held in the home and used in self-defense”, opinion about gun rights outside the home is much less clear.
Since Heller, the Supreme Court has largely remained silent about the scope of the second amendment, making only one major decision on the second amendment, McDonald v City of Chicago (2010). In this case, it was merely established that states, and not just the federal government, are bound by the restrictions of the second amendment to the gun laws – regardless of these restrictions.
Although the Supreme Court has largely stayed out of the interpretation of the second amendment since Heller, a clear consensus has emerged in the lower courts on how this amendment should be interpreted – even if this consensus is not shared by many important members of the Supreme Court .
The consensus approach on the second amendment was briefly explained
In the absence of further guidance from the Supreme Court on the application of the Heller ruling, the lower federal courts have largely focused on the same basic approach to Second Amendment cases.
At least 10 federal appeals courts employ what federal appeals judge Stephen Higginson calls the “two-tier analytical framework”. In this context, “serious encumbrances on the core rights of the second amendment” are subject to a “strict examination”, which in most cases of the constitution represents the most skeptical level of examination. In the meantime, “less burdensome laws or laws regulating behavior outside the” core “of the second amendment” are being subjected to a more permissive test known as the “mid-term review”.
Under this consensus framework, guns regulations place very serious restrictions on the “core rights” of the second amendment – which Higginson described as the “law abiding, responsible citizen to use guns in the defense of the hearth and home” recognized by the Heller Court but also contain some gun rights that were historically viewed as important – are usually thrown down, while less stringent restrictions or gun laws that do not encumber the “core” of the second amendment are more likely to be adhered to.
In 2012, the United States Court of Appeals for the Second Circuit applied this framework to the weapons licensing system at issue in the Corlett case and upheld that regime. In a statement from George W. Bush-appointed Judge Richard Wesley, the Second Circuit stated that the United States has a long history of laws preventing people from carrying guns outside of their homes.
“During its inception,” wrote Wesley, “many states prohibited the use of firearms on certain occasions and in certain places.” For example, North Carolina forbade “being armed day or night at fairs, markets, in the presence of the king’s judges or other ministers, or in any other part of the country.” In the 19th century, Georgia and Tennessee outright banned the sale of weapons, such as handguns, that could be concealed. And New York’s own licensing regime is more than a century old.
In light of this story, the Second Circle came to the conclusion that “state regulation of the public use of firearms” is anchored[in] The scope of the second amendment, when adopted, and thus a licensing system for those wishing to carry firearms in public, did not fall within the core of the second amendment.
Why the consensus approach is at risk
While the judges of the lower courts have broadly adopted the “two-tier analytical framework” used by most circles, there have been some dissenters. One dissident is Judge Brett Kavanaugh, who, in a dissenting opinion from 2011 when he was still a lower court judge, argued that the consensus approach should be abandoned. “The courts are supposed to judge gun bans and regulations on the basis of text, history and tradition,” claimed Kavanaugh, “not through a balancing test such as a rigorous or intermediate examination.”
In this 2011 case, Kavanaugh would have passed law banning semi-automatic assault weapons and requiring gun owners to register their firearms.
Judge Amy Coney Barrett, meanwhile, also called for a stricter second amendment when she was a lower court judge. Recall that Heller suggested that “longstanding bans on the possession of firearms by criminals and the mentally ill” are constitutional. Barrett, however, contradicted Cantor v. Barr (2019) and called for this rule to be reduced so that only “dangerous people” are prohibited from possessing a weapon. Under Barrett’s framework, a person convicted of a nonviolent crime such as postal fraud would still have the right to own a gun.
There is also a third reason to believe that the Supreme Court will likely use the Corlett case to push the law dramatically to the right.
Shortly before his death in 2019, retired Judge John Paul Stevens revealed some of the internal considerations behind the Heller Supreme Court decision. After former Judge Antonin Scalia, the author of Heller, submitted his original draft to the Court, former Judge Anthony Kennedy asked for “some important changes” to be made to that draft.
With Heller being a 5-4 decision, Scalia needed Kennedy’s vote to maintain his majority. According to Stevens, it was Kennedy who asked that the statement contain language that Heller should “not question” many existing gun laws.
But Kennedy retired from the Supreme Court in 2018 and was replaced by Kavanaugh. And judge Ruth Bader Ginsburg, who joined the dissent in Heller, died in 2020 and was replaced by Barrett.
In other words, the current court is much more conservative than the court that ruled Heller in 2008. It’s not even clear that a majority of the current court supports the parts of Heller that limit the scope of the second amendment – let alone the type of analysis that led the Second Circuit to uphold the New York Gun Licensing Act.
The future of gun control in the United States could be pretty bleak – and Corlett could mark the moment when legislature’s power to combat gun violence collapses.