WASHINGTON – The late Supreme Court justice Antonin Scalia was asked in 2013 whether the Second Amendment's right to bear arms stood on equal ground with other constitutional protections, such as freedom of speech.
"We're going to find out, aren't we?" he quipped.
That Scalia — who wrote the high court's landmark 2008 decision upholding gun rights — could not define the reach of that right was telling. Now, three years after his death, the court appears ready to put some teeth into an amendment that some justices say gets no respect.
The case, on tap to be heard this fall, challenges obscure New York City rules that prevent gun owners from transporting their weapons outside the city, whether to second homes or shooting ranges. There's nothing else like it among state and local gun restrictions.
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Yet from such outliers are major Supreme Court decisions of national import often born. And here, the court's conservative justices could clarify that all gun restrictions must clear a high bar, or state that the right to bear arms extends beyond the home.
“This could be a huge decision," says Adam Winkler, author of "Gunfight: The Battle over the Right to Bear Arms in America" and a UCLA School of Law professor. "This case is going to end badly for gun violence prevention advocates."
Gun control groups are so worried about the court's direction on the Second Amendment that they would prefer to see New York City change the challenged rules. That could render the case moot and prevent the court from hearing it.
Jonathan Lowy, director of legal action at the Brady Center to Prevent Gun Violence, says if the rules were changed, "it certainly would not be an issue worthy of the Supreme Court's consideration.”
Otherwise, he says, “There is a potential that this case will lead to a discussion by some justices, and perhaps by a majority, about whether the right to a firearm extends outside the home into public places."
What is clear is that the Supreme Court now has four strong proponents of gun rights with the addition in October of Associate Justice Brett Kavanaugh. He succeeded retired Associate Justice Anthony Kennedy, whose position on guns was viewed as more equivocal.
Before that personnel change, the court had declined at least eight opportunities to take on Scalia's challenge over the past five years. It had let stand Chicago's semiautomatic weapons ban and a variety of prohibitions against carrying guns in public, from New Jersey to California. It had refused to second-guess age limits for carrying guns in Texas and requirements for disabling or locking up guns when not in use in San Francisco.
Scalia's most famous opinion in District of Columbia v. Heller never defined the breadth of the right he declared. In fact, it made clear the court was not upholding “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."
"There are doubtless limits," Scalia said in that 2013 appearance at George Washington University. "What they are, we will see."
Seven ranges, 8.5 million residents
Whatever the limits should be, the New York State Rifle and Pistol Association doesn't think they should ban taking guns outside city limits – even when they're unloaded, locked up, and separate from any ammunition. The group, an affiliate of the National Rifle Association, wants the right to transport guns to upstate homes, target ranges and competitions.
The city has seven ranges that meet the police department's approval but 8.5 million residents. For some, the closest or most convenient range is in the suburbs.
Paul Clement, the former U.S. solicitor general representing the gun owners, said in court papers that the U.S. Court of Appeals for the Second Circuit's ruling "forces petitioners to choose which constitutional right they would rather exercise: their right to travel or their right to keep and bear arms.”
He went further, urging the justices to use the New York City case to strengthen the Second Amendment and halt "the spread of irrational and draconian restrictions" such as purchasing rules, fees and taxes.
Seventeen states led by Louisiana warn that upholding New York's restrictions could have an economic impact elsewhere.
“Wildlife tourism, which includes hunting, practicing, and competitive shooting, is a multibillion dollar industry in the United States," they said in court papers. "If New York’s regulatory scheme is allowed to stand and is copied by cities around the United States, it could undercut state economies dependent upon those tourism dollars.”
City officials contend a ruling in their favor would not set a trend. They belittle the gun owners' complaint that similar travel restrictions would be unfathomable if placed on golfers or musicians.
"Unlike golf clubs and musical instruments, firearms present public safety risks that the city has a legitimate interest in protecting against," they told the court. "Limiting their possession and use in public minimizes the risk of gun violence."
If it isn't negated by New York City's actions, the gun case will shed light on the Supreme Court's transformation under President Donald Trump.
For years, the court has been divided between conservatives and liberals, with one or more conservatives often switching sides on issues such as abortion, affirmative action and same-sex marriage.
But last week, the court's conservatives allowed Trump's partial ban on transgender troops in the military to take effect. And over the next few months, those conservatives may control court decisions on religious freedom, partisan gerrymandering and the power of government agencies to interpret ambiguous regulations.
When it comes to the Second Amendment, their frustration has been building for years.
The last time the court refused to consider a restriction on carrying guns in public, Associate Justice Clarence Thomas wrote that it was "extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen." He was joined by Associate Justice Neil Gorsuch.
When the court reversed a Massachusetts court that had upheld banning stun guns, Associate Justice Samuel Alito added that unless the Second Amendment applies outside the home, "then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.”
Kavanaugh's addition to the court in October may have given the other conservatives the vote they need to win future cases. As a federal appeals court judge, he dissented in 2011 from a decision upholding the District of Columbia's ban on semi-automatic rifles, insisting that courts should assess such regulations based solely on "text, history and tradition."
That makes Chief Justice John Roberts the likely swing vote in the New York City gun case – or the next such case, if this one is declared moot before oral argument.
“It’s all about 'WWRD,'" Winkler says. "What would Roberts do?”
This article originally appeared on USA TODAY: Supreme Court's conservatives appear poised to expand Second Amendment gun rights