Supreme Court's Second Amendment decision demands courts look to history, tradition

WASHINGTON – On the one hand, the Supreme Court's Second Amendment ruling on Thursday was limited: It struck down a requirement adopted in a half dozen Democratic-led states that curbed who may obtain a license to carry a handgun in public.

But under the hood of Associate Justice Clarence Thomas' 63-page majority opinion is a significant shift in the way federal courts will review gun laws – a change experts say will prompt challenges to other restrictions, including policies Congress is considering as part of its bipartisan gun safety package.

The high court’s 6-3 majority used a challenge to New York’s gun licensing requirements to reject a legal standard used by lower courts to assess challenges to gun restrictions under the Second Amendment. Instead of embracing that standard, Thomas said that in order to pass constitutional muster, a gun regulation must be "consistent with this nation's historical tradition of firearm regulation."

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Legal observers said the ruling may leave dozens of gun regulations vulnerable to challenges if they don't have a firm connection to practices or laws in place when the Second Amendment was adopted in 1791 or when the Fourteenth Amendment was adopted in 1868. That could include red flag laws, for instance, which permit courts to remove firearms from those deemed a threat but that didn't exist in 1791.

"Thomas says only gun regulations consistent with historical regulation of guns are permissible. Red flag laws, however, are a modern invention," Adam Winkler, a UCLA School of Law professor and Second Amendment expert noted on Twitter. "So, too, bans on domestic abusers."

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Those are two of the policies included in gun legislation approved by the Senate late Thursdaythe Supreme Court ruling. The legislation, a response to the mass shootings this year in Buffalo, New York, and Uvalde, Texas, provides funding to encourage states to adopt red flag laws. It would also prevent partners in a current or recent relationship from buying guns if they have been convicted of domestic violence.

At issue before the Supreme Court was a century-old New York law that required residents to have "proper cause" to carry a handgun – in other words, a need for self-protection greater than most people could demonstrate. Well-known figures or people who carry significant amounts of cash for their work might meet the state's threshold, for instance.

Two upstate New York residents, joined by the New York State Rifle and Pistol Association, sued when a county licensing official decided they didn’t have that extra need and denied them the carry privileges they sought.

By striking down the requirement, the court has cleared the way for what are likely to be immediate challenges to similar laws in California, Maryland, New Jersey, Hawaii and Massachusetts. Most states – 43, by the court’s count – have "shall issue" rules that presume residents are entitled to carry a gun as long as they meet the requirements the state sets, such as clearing a background check or completing a firearms training course.

The outcome was not a surprise, given the court’s Second Amendment rulings and the questions the conservative justices asked during oral arguments in November. In a pair of decisions in 2008 and 2010, a divided Supreme Court struck down handgun bans in Washington, D.C., and Chicago and ruled that Americans have an individual right to own a handgun in their home.

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What was less clear before the decision was handed down Thursday was how far the court was willing to go to expand that right outside the home.

“Does it put other regulations at risk? It does. There's no question that it does,” said Jeremy Paul, a professor at Northeastern University School of Law.

But Paul said it remains unclear which regulations are most likely vulnerable. The answer to that question, he said, may come down to two members of the court’s conservative wing: Chief Justice John Roberts and Associate Justice Brett Kavanaugh.

Kavanaugh stressed in a separate opinion Thursday, joined by Roberts, that he doesn’t view the court’s historical analysis as giving courts carte blanche to overturn every gun regulation on the books. Kavanaugh specifically asserted that the ruling doesn’t prohibit states from barring the mentally ill from possessing guns, for instance, or requiring conceal carry licenses.

Their concurrence is significant, Paul said, because it indicates a majority of the Supreme Court – three liberal justices along with Kavanagh and Roberts – may potentially support regulations such as red flag laws as well as licensing requirements such as mandated training even if those rules don’t have strong ties to the nation’s history of regulating guns.

“It’s not clear how far Roberts and Kavanaugh are going to go,” Paul said. “We'll have to wait until the next case in order to define it.”

Some of those disputes may revolve around how to define “sensitive places” where cities and states traditionally banned guns. The court’s opinion suggested the law is settled that some places could be gun-free zones – courthouses and legislative assemblies – but declined to weigh in on whether bars, sports stadiums and public transit also qualify.

A legal battle may also erupt over historic prohibitions on carrying guns to “terrorize others” and what that may mean today.

After the Supreme Court’s gun rulings in 2008 and 2010, lower courts adopted a two-step approach to deciding whether a gun law was constitutional. First, courts would assess whether a gun law regulated activity outside the scope of the Second Amendment’s right to bear arms “as originally understood” by the framers of the Constitution. If it did, then the law could stand.

But if it didn’t or if the historical evidence on this question wasn’t clear then courts would move to a second step and weigh how much the law burdened a person’s Second Amendment right against the government’s interest in doing so. In other words, did the city or state have a good reason for the law and was the restriction limited to addressing that reason.

"Despite the popularity of this two-step approach, it is one step too many," Thomas wrote for the court.

By rejecting the second step, the ruling Thursday blocks lower courts from weighing what a government says is its need for a gun law and instead requires judges to focus exclusively on the text of the Constitution and whether there are historical antecedents for the challenged gun law. That kind of analysis is an example of "originalism" – the idea that judges must interpret the Constitution as the nation’s founders would have – a philosophy that has dominated conservative legal thought for decades.

Gun rights advocates had long decried the two-step framework.

Chris Stone, with the National Association for Gun Rights, said the earlier approach to gun laws "turned the Constitutional questions into a cost-benefit analysis on a Bill of Rights guarantee." The earlier approach, he said, allowed lower courts to "wiggle around the plain meaning of the Second Amendment" and the high court’s opinion Thursday said "no more."

"The implications for gun rights litigation are massive," Stone said. "Judges will now have to admit that the Second Amendment means what it says, and rule accordingly. This spells doom for numerous state and federal gun laws and regulations."

Gun control groups aren’t throwing in the towel on defending regulations – and they hope to use the Thomas opinion to their advantage. Those advocates assert that there were many gun restrictions on the books at the nation's founding that would meet the high court's standard.

"There is a long and deep tradition of regulating firearms in the United States, a broad range of historical gun laws that we will be drawing on as we defend gun safety laws from expected renewed attacks," said Eric Tirschwell, executive director of Everytown Law, which advocates for gun control. "We remain optimistic that the vast majority of gun safety laws will withstand constitutional challenge, even under the court's new test."

Contributing: Candy Woodall

This article originally appeared on USA TODAY: Second Amendment: Supreme Court ruling changes legal terrain for guns