The Supreme Court just dramatically expanded Americans’ right to bear arms. In a 6-3 opinion, in which the court’s Republican-appointed justices were in the majority, the court ruled that a New York law severely restricting the ability to carry a concealed handgun in public was violated violates the constitution.
This decision is a big deal. Previously, the court merely said the constitution protects the ability to own a gun Inside the house of self-defense. In that decision, made in 2008, the judges did not decide how guns are carried Outside the house could be regulated. It took almost 15 years for judges to come back to this question, but now they have. The second amendment “Protect[s] a person’s right to carry a pistol outside the home in self-defense,” wrote Judge Clarence Thomas in the majority opinion Thursday’s verdict. Laws like the one in New York that required people who wanted a license to carry a concealed handgun in public to have a good reason are no longer allowed.
That doesn’t mean there isn’t a way to regulate the carrying of guns in public – Judge Brett Kavanaugh said so specifically in his affirmative opinion. However, Thursday’s ruling changes the way regulations are assessed. Thomas’ opinion is that regulations must be historically consistent with the Second Amendment. That is, when looking at a modern gun ordinance, judges must determine whether another, somewhat similar law was passed earlier in the country’s history. Previously, courts had also examined whether a regulation could be justified on other grounds, but this second level of consideration is no longer permissible.
What all this means in practice, however, is for the lower courts to work out, meaning there’s likely to be a spate of new gun-restriction litigation that could go all the way back to the Supreme Court.
The decision is a major expansion of gun rights
Gun rights advocates have been waiting for this verdict for over a decade – and it hasn’t disappointed. Thomas that was have been complaining for years on the court’s reluctance to clarify the meaning and scope of the Second Amendment, wrote a sweeping opinion that would greatly expand gun rights and could have a major impact on American lives.
That’s because while the 2008 Opinion changed the way the Second Amendment is interpreted to include an individual right to bear arms, it didn’t change the status quo much. There were relatively few laws restricting the ability to keep a gun in the home, and judges were aware that opinion didn’t stretch farther. A study that looked Lower court decisions on challenges to the Second Amendment from 2008 to 2016 found that the Supreme Court’s opinion hasn’t really changed the way other judges ruled gun regulations (although the study acknowledged that this was partly due to which could be due to the types of weapons under consideration).
Prior to Thursday’s ruling, judges had to consider two factors when assessing the constitutionality of a gun ordinance: Does it fit with Second Amendment history? And does the state have any other reasonable justification — like social science data suggesting the law could reduce gun violence?
Under the new ruling, state governments can no longer argue that a gun restriction should be maintained because it serves an important interest. Instead, the judges will only consider whether “the ordinance is consistent with this nation’s historical tradition of firearms regulation.” In his opinion, Thomas noted that modern regulation need not be a “death ring for historical antecedents”. but as gun law experts emphasizedFiguring out whether modern gun regulations are sufficiently similar to the laws passed 200 years ago will not be an easy matter. The ruling opens the door for any gun ordinance upheld under the 2008 ruling to be challenged again — in a judiciary much more conservative than it was a few years ago.
New front lines in the gun control war
As with many Supreme Court rulings, we are far from understanding the full implications of today’s ruling. Five other states and the District of Columbia have laws like New York, and they must enact new regulations for people who want to carry handguns in public. That in itself is no small feat as states include California, New Jersey and Massachusetts which are populous states with large cities.
But the conservative judges could have gone further and cut a huge chunk of gun regulations at once, which they didn’t. “Our ownership does not determine who may lawfully own a firearm or what requirements must be met to purchase a firearm,” Judge Samuel Alito wrote in his affirmative opinion. “It also doesn’t decide what kind of weapons people are allowed to own.”
But the ruling creates a number of new opportunities for advocates who want to limit states’ ability to determine who can carry a gun and where. In his opinion, Thomas said guns could still be banned in “sensitive places” but didn’t elaborate on what a “sensitive place” actually is. In his dissent, Judge Stephen Breyer noted that this category could prove rather limited when taken historically. “Where are the many sites in a modern city with no obvious 18th- or 19th-century analogue?” he wrote. “What about subways, nightclubs, cinemas and sports stadiums?”
So the future will depend, at least in part, on what state legislators try to do. Legislatures in a state like New York or California could test the limits of the Supreme Court ruling by designating the subway, Broadway theaters or grocery stores as “sensitive locations” where tightened restrictions may be applied. The risk for them, of course, is that the next Supreme Court ruling could expand gun rights even further.