Opinion: Conservative win in Second Amendment case could spur liberal court reform
Last Monday, the Supreme Court agreed to review a lower court decision regarding the Second Amendment, making this the first time the court has taken up this issue in over a decade. While gun rights activists are almost surely going to win, liberals may be able to turn it around and push for further court reform.
May 3, 2021
On April 26, the U.S. Supreme Court announced that it would review a longstanding New York law that restricted the ability to carry a gun outside the home. New York State Rifle & Pistol Association Inc. v. Corlett is set to be the first major Second Amendment decision in more than a decade. The previous 2008 case, District of Columbia v. Heller, created an individual right to bear arms, including keeping a handgun for self-defense. The newest case has the potential to expand a Second Amendment right of self-defense beyond the home, and given the court’s 6-3 conservative majority, this extension will likely happen. While a conservative ruling in this case would be extremely damaging to gun regulation advocates, liberals should take this as an opportunity to push for further court reform.
The case addresses a New York handgun licensing law, which has been in place since 1913, that denies concealed-carry licenses to individuals who do not demonstrate a distinctive need for self-defense. Examples of those who demonstrate “proper cause” to carry a handgun in public range from people who fear their stalker to storekeepers who want to protect their store. While the initial claim in Corlett was narrowed to “whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment,” the case still has the potential of creating a right for virtually anyone to bear arms outside the home. A ruling in favor of the plaintiffs would embolden lower courts to dismantle laws regulating guns. These laws were largely applied to fit in the narrow scope of Heller, but an expansion under Corlett may make many state regulations unconstitutional.
While the Second Amendment has not been addressed by the Court since 2008, making the precedent sparse and the outcome uncertain, the Court will almost definitely side with the plaintiffs. The Supreme Court only grants writs of certiorari and hears oral arguments in about 80 of the 7,000-8,000 petitions filed each term. Which cases will be accepted is decided by informal rules, the most important of which being the “rule of four.” This rule describes the Supreme Court’s practice of only granting a petition for review if there are at least four votes to do so, meaning that at least four justices agreed to take up Corlett. Since it takes five justices to form a majority, conservatives are almost certainly going to be able to persuade at least one colleague into joining them.
Furthermore, three justices who were a part of the majority in Heller — Thomas, Alito and Roberts — are still on the court. Thomas has been the most vocal, going as far to write in a dissent to not take another Second Amendment case citing that “in several jurisdictions throughout the country, law-abiding citizens have been barred from exercising the fundamental right to bear arms because they cannot show that they have a ‘justifiable need’ or ‘good reason’ for doing so.” The two newest justices, Kavanaugh and Barrett, exhibited strong interest in expanding the Second Amendment while working in lower courts. Kavanaugh wrote dissenting opinions questioning the validity of gun regulation itself. While Barrett was a judge on the federal appeals court in Chicago, she wrote in favor of expanding the eligibility of individuals who could own guns to nonviolent criminals, making her at least sympathetic to gun rights activists. The current makeup of the court is promising for Second Amendment absolutists to win in Corlett.
Recently, Alito issued a 31-page dissenting opinion to a case dismissed by the Supreme Court. His dissent directly targeted lower courts who have narrowly applied Heller to uphold gun regulation, stating that this phenomenon is “cause for concern.” This type of judicial activism blatantly being projected by Alito is the real cause for concern, and signifies the eagerness of at least one conservative justice for striking down gun regulations.
There is one glimmer of hope in this case that will likely strike down New York’s law, and that is the possibility that the decision will prompt activists to push for court reform. The six conservative justices already faced intense criticism from the left. Democratic leaders proposed legislation to expand the Court from nine to 13 justices, which would allow more liberal judges to join the Court. While President Biden has sidestepped the question of court packing, he ordered a bipartisan commission to examine politically incendiary issues regarding the Supreme Court, including term limits for justices. The momentum for court reform is only building, and a sweeping interpretation of the Second Amendment may be the tipping point.
The Pew Research Center found that 60% of Americans believe gun laws should be tougher. Since the beginning of 2021, the United States has suffered at least 147 mass shootings. If the Supreme Court delivers a radical, new interpretation of the Second Amendment in Corlett, liberals must weaponize this to push for reform.
Opinions expressed on the editorial pages are not necessarily those of WSN, and our publication of opinions is not an endorsement of them.
Email Emily Dai at [email protected]