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Will the Supreme Court Throw Out Laws Prohibiting Concealed Carry?

A case being argued next month may take the Court beyond its 2008 Heller ruling.
October 7, 2021
Will the Supreme Court Throw Out Laws Prohibiting Concealed Carry?

We are one month into the school year and already there have been dozens of gun-related incidents—mostly minor, some not—at American schools. Yesterday, a high schooler in Arlington, Texas, shot a teacher and two other students following a fistfight; children hiding in their classrooms sent terrified text messages to their parents. Last Thursday, the same day that one 13-year-old shot another 13-year-old in the hallway of their school in Memphis, Tennessee, a 6-year-old was shot in the leg outside his school in Newton, Mississippi. School lockdown drills to train for active-shooter situations have become a fact of life across the country.

According to data from Pew and Gallup, while 40 percent of American adults live in households containing a gun, over half (53 percent) favor stricter gun laws. This year’s death toll from gun violence was 14,516 as of September 15, with 498 of the incidents involving four or more people shot or killed (not including the shooter). By that definition of “mass shooting,” that’s nearly two mass shootings per day.

Given the scale of the problem and the widespread interest in reform, you would think that gun violence would be a major, ongoing issue before state legislatures, in local governments, and at the ballot box. Instead, five or more unelected justices on the U.S. Supreme Court are positioned to ban meaningful gun regulation altogether if they personally see fit to stretch the Constitution that far in a landmark Second Amendment case on the docket this term—a reality made more troubling by some personal judicial lines already drawn around the issue.

New York State Rifle & Pistol Association v. Buren, scheduled for oral argument next month, is the biggest Second Amendment case since the 2008 landmark decision in District of Columbia v. Heller, in which Justice Antonin Scalia penned a majority opinion that effectively trumped the Court’s ruling in United States v. Miller. That case held in 1939 that the Second Amendment protects state militias. In Heller, the Court declared for the first time that the Second Amendment actually protects an individual’s right to own a handgun in the home for self-protection.

Meanwhile, just this week the Court turned down a case challenging a Wisconsin law banning residents with felony convictions from owning handguns for the rest of their lives, even if for nonviolent crimes (a prior case involved a man who sold pirated cassette tapes in the 1980s, for example). The lower court’s rationale was that the state’s interest in preventing gun violence was paramount. That’s precisely the question facing the Court this term: Does a state have an interest in protecting human life and safety that justifies limiting individuals’ ability to carry concealed firearms in public?

The answer would seem obvious, particularly given the Court’s apparent tolerance of lifetime bans on gun ownership for nonviolent felons. There are plenty of dangerous gun owners out there without felony convictions. Isn’t the state justified in protecting people from those folks too?

Yet as reasonable as that sounds, the law on the subject is far from clear, and so the issue is largely out of the hands of the country’s nearly 170 million registered voters and instead in the hands of nine unelected individuals in black robes.

The Second Amendment itself mentions two things: “A well regulated Militia” and “the right of the people to keep and bear Arms.” It doesn’t expressly pick one over the other—or both—for protection. Nor does the Constitution define the term “Arms,” which has much different implications today—with nuclear weapons and 3D printers that can create untraceable guns—than it did in 1791. The Court’s newest justice, Amy Coney Barrett, told Congress in her confirmation hearing that courts should apply the law rather than “disturbing, changing, updating” or “adjusting” it—or favoring “the law of Amy” over “the law of the American people.” But that is precisely what the Court is necessarily poised to do.

The challenged New York law requires residents to show “proper cause” to carry a concealed handgun in public for activities; New York courts have defined those to include “target practice, hunting, or self-defense.” The need must be “actual and articulable” and not “merely speculative or specious.” Two disappointed gun owners challenged the law, arguing that “good, even impeccable, moral character plus a simple desire to exercise a fundamental right is, according to these courts, not sufficient”—but should be.

Twenty states currently allow for open or concealed carry of firearms without a permit; four adopted such leniency in 2021 alone. (Prior to 2010, Vermont was the only one.) Seven states—New York, California, Delaware, Hawaii, Maryland, Massachusetts, and New Jersey—still restrict the carriage of firearms in public absent “proper” or “good” cause.

Given the shift in many states toward unrestricted firearms, Justice Scalia’s limiting language in Heller may come as a surprise:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . . For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.

The fact that the Court has now taken up Buren suggests that Scalia’s acceptance of concealed gun regulation is vulnerable. In finding a right under limited circumstances, Scalia looked to the popularity of handguns as “overwhelmingly chosen by American society” for the “defense of hearth and home.” But according to the FBI, “handguns comprised 62.1 percent of the firearms used in murder and nonnegligent manslaughter incidents in 2019.” Heller declared them constitutionally protected regardless of the broader public safety considerations, albeit only in the home. Even this right-leaning Court will be hard-pressed to deny that states have a legitimate interest in public safety around guns, but it’s not hard to imagine that a majority of justices could “read” Heller’s understanding of the right to bear arms as (contra Scalia and nineteenth-century courts) protecting on a self-defense rationale the right to carry a concealed gun in public.

Keep in mind too that last year, the Court refused to hear a challenge to New York City’s ban on transporting licensed handguns outside the city after the ban was repealed, rendering the case moot. Not content with New York’s backsliding, Justices Alito, Gorsuch, and Thomas all balked at the dismissal, claiming that the majority was “permit[ting] our docket to be manipulated in a way that should not be countenanced.” Alito wrote by way of example:

A State enacts a law providing that any woman wishing to obtain an abortion must submit certification from five doctors that the procedure is medically necessary. After a woman sues, claiming that any requirement of physician certification is unconstitutional, the State replaces its old law with a new one requiring certification by three physicians. Would the court be required to dismiss the woman’s suit? Suppose the court, following the precedent set by today’s decision, holds that the case is moot, and suppose that the woman brings a second case challenging the new law on the same ground. If the State repeals that law and replaces it with one requiring certification by two doctors, would the second suit be moot? And what if the State responds to a third suit by enacting replacement legislation demanding certification by one doctor?

Mootness doctrine does not require such results. A challenge to an allegedly unconstitutional law does not become moot with the enactment of new legislation that reduces but does not eliminate the injury originally alleged. And that is the situation here.

By Alito’s reasoning, a functionally dead unconstitutional law can be challenged in the Supreme Court, but not a live unconstitutional law (such as the one he and other justices left intact in Texas around this very issue last month).

In a separate case involving a refusal to take up California’s 10-day waiting period, Thomas went even further to champion a vibrant constitutional right to gun ownership, claiming that “the lower courts are resisting [Heller] and . . . failing to protect the Second Amendment to the same extent that they protect other constitutional rights,” and that “if a lower court treated another right so cavalierly, I have little doubt that this court would intervene.” By Thomas’s reckoning, “the Second Amendment is a disfavored right in this court.”

All told, a contingent of the Supreme Court seems eager to expand Heller (unless of course that extension is for such groups as people with certain criminal convictions, who happen overall to be disproportionately black both at the federal and state levels). Such a ruling would make even more plain the Court’s intellectual dissonance when it comes to individual constitutional rights. It would also likely have the effect of increasing the number of Americans walking around armed in public, at a moment when political discord, disunity, and polarization are climbing to dangerous new heights.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.