On November 3, the United States Supreme Court will hear arguments in a case that could significantly expand the right of Americans to carry firearms in public. At issue is a New York law requiring applicants for a concealed carry license to demonstrate that they have a specific need for self-protection. In previous decisions — District of Columbia v. Heller (2008) and McDonald v. the City of Chicago (2010) — majorities of the justices decided that the Second Amendment permits individuals to keep guns in the home for self-defense.
Harvard Law Today recently asked Professor Emeritus Mark Tushnet, a constitutional scholar and author of the 2007 book, “Out of Range: Why the Constitution Can’t End the Battle over Guns,” to preview the case and possible outcomes.
Harvard Law Today: What is this case about?
Mark Tushnet: The case to be heard by the Supreme Court involves a New York statute that restricts permits to carry handguns outside their homes to those who can show “proper cause” to the local authorities. The state courts have said that “proper cause” means “a special need for self-protection distinguishable from that of the general community.”
HLT: What is the status of gun rights and regulation in the wake of the Supreme Court’s most recent Second Amendment decisions?
Tushnet: The Heller and McDonald decisions held that the Second Amendment gives people an individual right to keep guns in their homes for purposes of self-defense. The decisions also said that the holdings did not put into question “longstanding” restrictions on gun possession for purposes of public safety, such as restrictions on gun possession in specially vulnerable places like schools and courthouses (the examples come from the scholarly literature, but no one seems to disagree).
HLT: What constitutional questions are at stake?
Tushnet: The first question in this case is whether that constitutional right covers gun possession outside the home for the same purpose. Most lower courts have held, or said in dicta, that it does. If so, a second question arises: When the government regulates gun possession outside the home, what must it show to establish the constitutionality of the regulation? That question in turn divides into two sub-questions: Is the constitutional test a purely historical one (that is, is the regulation at issue the same as or quite similar to regulations adopted around the Founding Era or during Reconstruction)? Or, is the test purely doctrinal (that is, what standard of review should be applied to the regulation)?
HLT: Where do the different sides come down on these questions?
Tushnet: Of course, the parties disagree about the historical record, though – to my reading – that record does show substantial support for restrictions on gun possession outside the home.
The parties also dispute what the standard of review should be. Proponents of gun rights say that the Second Amendment is just like the First: Any regulation must satisfy a “compelling” government interest, and must do so in a “narrowly tailored” way. They generally concede that pursuing public safety is a compelling interest, but argue that giving public authorities broad discretion to decide who “needs” a gun for purposes of self-protection isn’t narrowly tailored. They suggest, for example, that “concealed carry” permits should be unavailable only to well-defined groups, such as those convicted of violent crimes, whose possession of guns clearly raises public safety concerns. (Supporters of the New York statute argue that even if the standard is “strict” in this sense, the regulation is appropriately designed.)
Supporters of the regulation argue that an “intermediate” standard of review should be applied. The government’s interest has to be “important” but need not be compelling, and the regulation has to be “substantially related” to that interest. They argue that many constitutional rights are tested by intermediate scrutiny, and only a few — some but not all First Amendment rights — are tested by the stricter standard. And, of course, they argue that New York’s regulation easily passes intermediate scrutiny.
HLT: Any other issues readers should keep in mind?
Tushnet: There’s one further wrinkle. Heller and McDonald might be limited to gun possession in the home. Then gun owners wouldn’t have a constitutional right to carry guns outside the house. But New York’s permit system means that they have a statutory right to do so — if they satisfy the “good cause” requirement. And, perhaps, that requirement is too vague to satisfy requirements of procedural due process because it gives the local authorities too much discretion to deny the permits — perhaps, for example, by favoring their friends and political allies and by invoking the “no good cause” rule to conceal racial discrimination.
HLT: Any prediction about how the Court might rule?
Tushnet: It’s always risky to predict how a majority of the Supreme Court will decide any specific case. Several of the more conservative justices have indicated in separate opinions that they’re uncomfortable with lower-court decisions applying intermediate scrutiny to gun regulations, though those expressions all involved regulations that as a practical matter affected gun possession inside the home. The historical case for allowing some regulation of gun possession in public seems to me reasonably strong, but whether a majority will find this particular regulation consistent with that historical record is unclear.
Finally, lurking in the background is the public discussion of “Supreme Court reform.” Two pending issues — abortion and gun control — play a large role in the rhetoric of those supporting such reforms. There’s some evidence from political science that “atmospherics” like that do tend to induce at least some justices to pull back from doing things that might confirm what their critics are saying – though no one has a decent theory about why the justices would care. And, because it doesn’t seem to me difficult to uphold the New York regulation while affirming a broad notion of Second Amendment rights — by saying, for example, that the proper standard is strict scrutiny but that the New York regulation is indeed narrowly tailored – perhaps those atmospherics will matter to one or two of the more conservative justices.