US After Long Gap, Supreme Court Poised to Break Silence on Gun Rights

11:40  02 december  2019
11:40  02 december  2019 Source:   nytimes.com

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A gun shop in Benson, Ariz. A transformed Supreme Court will take up what could be a pivotal Second Amendment case on Monday.© John Moore/Getty Images A gun shop in Benson, Ariz. A transformed Supreme Court will take up what could be a pivotal Second Amendment case on Monday.

The nation has had a spike in gun violence. And lower courts have issued more than 1,000 rulings seeking to apply the justices’ 2008 decision in District of Columbia v. Heller, which established an individual right to own guns but said almost nothing about the scope of that right.

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The Supreme Court on Monday will hear arguments in a potentially landmark Second Amendment case, the first time in roughly a decade that the justices will consider gun rights This latest chapter in the nation’s long -running debate over Second Amendment rights has drawn in familiar interest groups.

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The new case concerns a New York City ordinance. Fearing a loss in the Supreme Court, to say nothing of a broad ruling from the court’s conservative majority on what the Second Amendment protects, the city repealed the ordinance and now argues that the case is moot. But the court may be ready to end its decade of silence, elaborate on the meaning of the Second Amendment and, in the process, tell lower courts whether they have been faithful to the message of the Heller decision.

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Proponents of gun rights and some conservative justices say lower courts have been engaged in lawless resistance to the protections afforded under the Second Amendment by sustaining unconstitutional gun-control laws.

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“The lower courts have, generally speaking, been defying Heller,” said George Mocsary, a law professor at the University of Wyoming.

Gregory P. Magarian, a law professor at Washington University in St. Louis, looked at the same evidence and came to the opposite conclusion. “By and large, the lower courts have played this whole game very straight,” he said. “They have taken Heller seriously.”

The decision in the new case may clarify matters. Justices Clarence Thomas and Neil M. Gorsuch have already set out their positions, saying that the Supreme Court has tacitly endorsed dishonest rulings in the lower courts by refusing to hear appeals from decisions sustaining gun-control laws.

It was, Justice Thomas wrote in a 2017 dissent joined by Justice Gorsuch, part of “a distressing trend: the treatment of the Second Amendment as a disfavored right.”

In another dissent last year, Justice Thomas returned to the theme.

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The right to silence is a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the world's legal systems.

“The right to keep and bear arms is apparently this court’s constitutional orphan,” he wrote. “And the lower courts seem to have gotten the message.”

Eight months later, Justice Brett M. Kavanaugh joined the court, replacing the more moderate Justice Anthony M. Kennedy. And just a few months after that, the court announced that it would hear the case to be argued Monday.

The Heller decision was both revolutionary and modest. It ruled, by a 5-to-4 vote, that the Constitution guarantees an individual right to own guns — in the home, for self-defense. At the same time, it indicated that many kinds of gun regulations are permissible.

Justice Kennedy was in the majority in Heller decision, but he insisted on an important limiting passage, according to a 2018 interview with Justice John Paul Stevens, who wrote the main dissent and died in July.

“Nothing in our opinion,” Justice Antonin Scalia wrote for the majority in the passage that was the price of Justice Kennedy’s fifth vote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

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The court’s only other Second Amendment case since then, McDonald v. Chicago in 2010, extended the Heller decision, which concerned federal gun laws, to state and local ones.

Recent scholarship tells a complicated story about how the Heller decision has been applied in the lower courts. A comprehensive study of Second Amendment rulings after the Heller decision through early 2016, published last year in the Duke Law Journal, found that the success rate for challengers was indeed low, at about 9 percent.

But the article concluded that “the low rate of success probably has more to do with the claims being asserted than with judicial hostility.” For instance, challenges by felons charged with possessing guns made up about a quarter of the cases and almost always failed, as the Heller decision itself seemed to require.

Other challenges, in criminal cases or brought by people without lawyers, were also seldom successful. But plaintiffs with lawyers in civil cases in federal appeals courts, the study found, had a success rate of 40 percent.

“Second Amendment challenges have overwhelmingly failed at a broad level,” said Joseph Blocher, a law professor at Duke, who conducted the study with Eric Ruben, a fellow at the Brennan Center for Justice. “Something like 90 percent of them failed. But when you dig down into the cases to see why they failed, it turns out that many of them were weak from the outset.”

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Supreme Court to Consider Gun Rights for 1st Time in 9 Years. Joining in support of gun rights , 17 states said the court should break its years- long silence and use the case to define the scope of gun rights under the Constitution and the level of scrutiny, or skepticism, judges should apply to gun laws.

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“Courts are not reflexively rejecting Second Amendment claims,” Professor Blocher said. “There will be cases in which judges may not go far enough in protecting the right, but that’s not indicative of what critics have called ‘massive resistance’ or ‘nullification’ or ‘second-class rights treatment.’”

Still, said Brannon P. Denning, a law professor at Samford University in Birmingham, Ala., “there was a tendency to give Heller the narrowest possible reading.”

“Judges were saying that as long as there is not a complete prohibition of possession of a handgun for self-defense in the home,” Professor Denning said, “then pretty much on anything else we’re going to give the benefit of the doubt to the government.”

The New York City ordinance challenged in the new case allowed residents with so-called premises licenses to take their guns to one of seven shooting ranges in the city limits. But the ordinance barred them from taking their guns anywhere else, including second homes and shooting ranges outside the city, even when they were unloaded and locked in a container separate from ammunition.

Three city residents and the New York State Rifle and Pistol Association filed a lawsuit challenging the law but lost in Federal District Court in Manhattan and in the United States Court of Appeals for the Second Circuit. A unanimous three-judge panel of the Second Circuit ruled that the ordinance passed constitutional muster under the Heller decision.

After the Supreme Court agreed to hear the case, New York State Rifle and Pistol Association v. City of New York, No. 18-280, the city amended its ordinance to allow people with premises licenses to take their guns to their homes and businesses and to shooting ranges and competitions, whether in the city or not. For good measure, New York State enacted a similar law.

The challengers have gotten everything they sought, the city’s lawyers told the Supreme Court, making the case moot. In response, the challengers said the case is still live because they may be entitled to seek money from the city and could suffer negative consequences for what was unlawful conduct while the ordinance was in place. They urged the justices not to reward the city’s “extraordinary machinations designed to frustrate this court’s review.”

Timothy Zick, a professor at William and Mary Law School, said supporters of gun regulation had reason to hope the justices would rule that the case is moot.

“The fear is that the court will accept the premise that what we need here is the most robust form of protection we can offer to this fundamental right because it’s been orphaned and disrespected,” Professor Zick said. “That, and the fact that this law is not a very good one, makes it understandable that you might not want this case to be the one that the court decides.”

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