© Reuters. FILE PHOTO: Discarded bullet shell cases are seen at Master Class Shooting Range in Monroe, New York, U.S., July 30, 2020. REUTERS/Brendan McDermid/File Photo
By Lawrence Hurley and Andrew Chung
WASHINGTON (Reuters) – The U.S. Supreme Court’s ruling striking down New York state’s limits on carrying concealed handguns in public is likely to provide legal ammunition to challenge other regulations around the country even as Congress considers modest reforms.
In a 6-3 ruling, the court for the first time recognized that individuals have a right to carry a firearm in public under the U.S. Constitution’s Second Amendment, which protects the right to bear arms.
The ruling, authored by conservative Justice Clarence Thomas, declared unconstitutional a New York law that required people to have good cause to obtain a permit to carry a concealed firearm.
The decision also clarified for future cases how courts must assess whether regulations are valid under the Second Amendment, requiring them to be comparable with the type of restrictions traditionally adopted throughout U.S. history dating back centuries.
As a result of the ruling, government entities defending gun restrictions must make additional arguments that the law in question is consistent with that history.
Because many gun statutes are not easily comparable to historical restrictions, it could make them vulnerable to legal attack. These include bans on assault-style weapons and high-capacity magazines as well as “red flag” laws to keep firearms away from people deemed a danger to themselves or others.
“I think this opinion is going to lead to a tremendous amount of litigation over the constitutionality of gun restrictions,” said Adam Winkler, an expert on the Second Amendment at the UCLA School of Law in Los Angeles.
The ruling is “written so broadly as to call into question a wide variety of gun safety laws,” Winkler added. That could include provisions of modest gun safety legislation currently being considered by Congress, Winkler said.
A bipartisan package of modest gun safety measures advanced in the U.S. Senate on Thursday. The legislation aims, among other things, to tighten background checks for would-be gun purchasers convicted of domestic violence or significant crimes as juveniles. It does not include broader measures favored by Democrats including President Joe Biden such as bans on assault-style rifles or high-capacity magazines.
Royce Barondes, a University of Missouri School of Law professor who teaches firearms law, said he expects that some previous challenges to gun regulations that were rejected by courts “are more likely to be successful after this case.”
Among the state regulations that are now “suspect” are restrictions on giving firearms licenses to people from out of state and bans on “standard capacity” ammunition magazines, which can vary based on the model, Barondes said.
Several challenges to gun restrictions are still seeking the Supreme Court’s review, including to a New Jersey ban on ammunition magazines that can hold more than 10 rounds.
Thursday’s ruling did make some concessions, acknowledging that governments could enact prohibitions on firearms in certain “sensitive places” and stating that regimes used in 43 states to issue concealed carry licenses when certain requirements are met are likely lawful.
Two conservative justices who joined in the ruling offered what might be some parameters as to its scope. Justice Brett Kavanaugh wrote in a concurring opinion joined by Chief Justice John Roberts that the decision has some limits, specifically some of licensing requirements that states maintain including background checks and firearms training.
In future gun cases, Kavanaugh and Roberts could be pivotal votes. If they join the three liberal justices, that would be enough to forge a majority in a future ruling.
As such, gun control advocates were hopeful that many regulations could withstand legal scrutiny even under the Supreme Court’s new test.
Jonathan Lowy, a lawyer at the gun control group Brady, said laws banning high-capacity magazines and assault-style semiautomatic weapons should be upheld because the Supreme Court already decided in a 2008 ruling that found an individual right to bear arms in the home that there is a historic tradition supporting bans on “dangerous and unusual weapons.”
Thursday’s ruling noted that some cases “implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach.”
Barondes said that while he did not think that language was designed to validate bans on assault-type rifles, “I wouldn’t rule out lower courts using that as a tool to validate such a ban.”
Lowy and other gun control activists expressed frustration that the court’s conservative majority, in their view, selectively used historical evidence to support invalidating New York’s measure while ignoring history that favored the state, which they fear could be the same approach used in subsequent cases.
“I do think there is room for reasonable objective judges to uphold most gun laws,” Lowy said. “But the question is: Who is making the decision?”