Supreme Court case could force lower courts to apply 18th century gun laws

WASHINGTON (CN) — As the country grapples with the murders of 19 children and two schoolteachers in the deadliest mass shooting of the year, the Supreme Court stands ready to release a consequential ruling on gun rights that could change how courts evaluate the Second Amendment. 

The Second Amendment protects the right to keep and bear arms. In 2008, the court affirmed this right within one’s home in District of Columbia v. Heller. Now, for the first time in over a decade, the court will decide how that phrasing is applied to carrying guns in public. Specifically, the case before the court challenges New York’s restrictions on qualifications for concealed-carry licenses.

When the court heard oral arguments in November, the question appeared to be not whether the conservative justices would expand Second Amendment rights but to what extent. 

New York — and other states like New Jersey and California — have laws that allow licensing authorities to use discretion when issuing licenses to carry a concealed firearm. Experts call these “may” laws because the state may issue a license if the person shows good cause. Other states have “shall” laws that don’t allow licensing authorities to use discretion. Some states — like Texas, where an 18-year-old wielded an assault rifle at an elementary school in Uvalde this week — are abandoning the permitting process altogether. 

“The narrow issue, in this case, is about permitting and how much discretion a licensing authority can exercise in granting a license to carry weapons,” Darrell Miller, a professor of law at Duke Law, said in a phone call. “It used to be that most states had some kind of licensing rules, but very aggressive moves on the part of gun rights organizations and the gun lobby have relaxed that rule in many states.” 

The court has a number of ways to resolve this issue. They could write a narrow opinion that says some forms of discretion are allowed, or they could take a broader view and get rid of that discretion in favor of something more similar to the shall laws. There is also a possibility that the court takes a very expansive view and says all licensing would be unconstitutional. Experts say the latter path would be surprising, however, considering the long history of licensing of concealed firearms. 

“It’s possible, though I think very unlikely, that the court can issue a very broad ruling that says the Second Amendment does not allow states to require licenses for carrying guns in public. And if it said that, it would mean that the 25 states that currently have some licensing requirements for carrying a concealed weapon in public, those laws would also be called into question,” Jacob Charles, the executive director for the Center for Firearms and lecturing fellow at Duke Law, said in a phone call. “But other than the concealed-carry licensing scheme, it’s hard to see a broad enough ruling that would on its own call into question other kinds of laws like assault weapons bans, for instance, or bans on large-capacity magazines.” 

A ruling on the licensing authority of states will be important and no doubt consequential, but experts say the bigger issue is the methodology they use. 

“There’s this other issue that is a potentially huge issue … that not only academics but also legislators and litigants are looking at, which is the question about how do you even go about answering a question about whether something is constitutional or unconstitutional with the Second Amendment,” Miller said. 

Appeals courts currently use a two-part framework to decide Second Amendment cases. First, courts use a categorical test to decide if the case concerns a Second Amendment issue. For example, if someone goes into a bank with a gun and tells the patrons to give them their wallets, the scenario doesn’t concern the First or Second Amendment protections even though there are aspects of speech and a gun.

The second part of the framework asks, if it is a Second Amendment issue, how much protection should be afforded? An example of this would be laws that prevent felons from possessing guns. A court could say that’s not a categorical rule and further examine why certain crimes should prevent someone from owning a gun.