Upcoming Supreme Court Term Has 2A Implications

U.S. Supreme Court Image NRA-ILA
U.S. Supreme Court Image NRA-ILA

New York City/Washington D.C. – -(AmmoLand.com)- The Supreme Court kicked off its 2019-2020 term last week, and one of the cases it is taking has huge implications for Second Amendment supporters. The implications are also being recognized by those who seek to strip our rights away. That case is New York State Rifle and Pistol Association vs. City of New York, New York. It should be noted that the New York State Rifle and Pistol Association is the state affiliate of the National Rifle Association.

Since the Supreme Court announced they would hear the case back in January, New York City has been eager to avoid having a final ruling on their restrictive rules that prohibited taking a firearm to either a second home or a shooting range outside New York City. New York City proceeded to change the rules in question. Back in April, they wanted the briefing to be delayed, citing a potential change. The Supreme Court denied that request. The day after the rules were changed, they wanted the case declared moot. The Supreme Court denied that request, too, but did say that both sides should address the mootness question during oral arguments.

It was obvious why what happened took place the way it did. The restrictions New York City had in place are almost certain to be struck down by the Supreme Court – they’re that restrictive. That is bad enough for anti-Second Amendment extremists. But the reasoning used to strike them down is arguably more important than the virtually certain final result.

Aside from the highly unlikely possibility that the Supreme Court would agree the case is moot after oral arguments, the best outcome that New York City could hope for the court would say that they flunked even a rational basis test, and not set up a more general rule. Should that be the ruling, then the gains seen by Second Amendment supporters would be very limited. Under rational basis, there is a significant possibility that semi-auto bans like the one proposed by Beto O’Rourke could pass constitutional muster.

That possible ruling doesn’t worry the likes of Andrew Cuomo, but the governor of New York is no dummy. Rational basis may not be a likely outcome, as seen in not just a ruling by a federal district court in California that invalidated that state’s magazine ban, but also the Seventh Circuit’s ruling in Moore v. Madigan, the case that forced Illinois to pass a shall-issue concealed carry bill. The standard used has been called heightened or intermediate scrutiny, and while it has been used to uphold “may issue” carry permit laws and semiauto bans, it also was used to strike down laws.

What scared the Cuomo regime and the city of New York into the legislative, regulatory, and legal gymnastics they pulled to avoid a Supreme Court ruling is the chance that the Supreme Court could apply strict scrutiny.

Here is why that is a nightmare for Andrew Cuomo: To pass strict scrutiny, a law passed by the government must further a compelling interest, and it has to be tailored very narrowly to meet that objective.

When you look at the gun bans (and other infringements on Second Amendment rights) that Beto O’Rourke, Eric Swalwell, and other anti-Second Amendment extremists want, and which Cuomo signed into law, the last word that comes to mind is narrow. It doesn’t just hit proposed legislation – laws currently in place could also go down. It would be a massive shift in the legal and political landscape surrounding Second Amendment issues in favor of Second Amendment supporters.

The opportunity coming from such a shift would be bigger than the one after the Heller and McDonald cases. Even if the court applies intermediate scrutiny, that provides a road map in terms of strategy and tactics for future arguments before the court – either on the terrain of intermediate scrutiny OR how to shift the standard of review to struct scrutiny.

That said, even a ruling that requires strict scrutiny will not end the fight. If anything, the fight will shift from a largely legislative/political fight (although that will still exist, albeit centered on court-packing) to one that will be centered around corporate gun control like what Salesforce is doing, social stigmatization, financial blacklisting, and Silicon Valley censorship. It will require a full-spectrum effort, and its success will depend on how well our approach will come across to fellow Americans, the techniques used, and the strategy and tactics.

In many ways, the fight will not end with a favorable ruling by the Supreme Court, it will just be starting.



Harold Hu, chison

About Harold Hutchison

Writer Harold Hutchison has more than a dozen years of experience covering military affairs, international events, U.S. politics and Second Amendment issues. Harold was consulting senior editor at Soldier of Fortune magazine and is the author of the novel Strike Group Reagan. He has also written for the Daily Caller, National Review, Patriot Post, Strategypage.com, and other national websites.

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Wild Bill
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Wild Bill

Lower fed courts are ignoring the Supreme Court’s authority to maintain continuity of the law nationwide. If the S. Ct. were as smart as they think that they are they would use Second Amendment cases to reign in the lower fed courts (e.g. Ninth Circuit) and the various state legislatures.

Boomer
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Boomer

Wow! I literally had to do a double take after reading this when looking who authored it! Thank you for this article Harold! I honestly believe this is your best yet! Clear, concise, and to the point with little to no authoritative style writing while still informing readers of the importance of this potentially (hopefully) pro-2A ruling! Also, you gave a new perspective, for me anyway, on this issue. Definitely a break from the usual Harold style, and I for one, sincerely appreciate it! Thank you, sir! God Bless!

Charles Nichols
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Illinois was not “forced” to enact a concealed carry law. The 7th circuit struck down the Illinois bans on both Open Carry and concealed carry. It was the so-called gun-rights groups that lobbied the state legislature to ban Open Carry and to implement an onerous, restrictive concealed carry law. A law that is in direct conflict with the US Supreme Court decisions in Heller and McDonald which held that Open Carry is the right guaranteed by the Constitution and which held that concealed carry is not a right and can, therefore, be banned. Justice Scalia said that concealed carry is… Read more »