The Supreme Court ruled in the 2008 case D.C. v. Heller that the Second Amendment protects an individual right to possess weapons—or at least commonly used weapons—in the home. In 2010's McDonald v. Chicago, the Court found that states and localities were also barred from violating that right. But those landmark rulings left unsettled a host of important questions about how, when, and why the government can regulate or restrict gun rights.
"The Second Amendment right is not unlimited," Justice Antonin Scalia cautioned in the majority opinion in Heller. "It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." For example: "concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
The Supreme Court hasn't taken up any new Second Amendment cases since McDonald, but that doesn't indicate a lack of interest. The Court receives thousands of petitions for review—or certiorari—each year, but it replies to only a few hundred. It has recently plucked a handful of Second Amendment cases from the submissions pile, asking for responses from the relevant parties.
"The fact that the Supreme Court has been requesting responses," lawyer C.D. Michel wrote at calgunlaws.com in February 2012, "shows the Justices are paying unusually close attention to the Second Amendment issue." Michel went on to theorize that "the Court is interested in further clarifying the scope of Second Amendment rights but is searching for the right case vehicle to do so." Meanwhile, other cases are percolating through the lower courts that may soon end up getting SCOTUS' attention.
Here are five important cases that could expand Second Amendment liberty and clarify some of the core issues left unresolved by Heller and McDonald. The cases involve who can legally obtain weapons, what kinds of weapons they can own, how they can use them, and where they can use them. Two of them have filed certiorari petitions with the Supreme Court, though whether they'll be taken up remains to be seen.
NRA v. BATFE
This case is about who can legally obtain guns. It challenges the 1968 federal prohibition on licensed gun dealers selling handguns or handgun ammo to adults between the ages of 18 and 20. People in that age range can buy long guns, such as rifles or shotguns, and they can legally possess handguns. But they are barred from purchasing any of these items from licensed dealers, restricting their ability to obtain what they are permitted to own.
The case has dragged on since 2011, necessitating the addition of a new plaintiff (since the original pair of complainants have reached age 21). Two lower courts considering the case decided that 18- to 20-year-olds have no rights under the Second Amendment, never mind Heller.
The petition for certiorari requests the Supreme Court to decide "whether a nationwide, class-based, categorical ban on meaningful access to the quintessential means to exercise the right to keep and bear arms for self-defense can be reconciled with the Second Amendment." That question has potential relevance beyond the age cohort at issue: There are legal limits imposed on the gun rights of convicted felons and those adjudicated mentally ill, for example.
The lower courts' opinions in NRA v. BATFE show they are not taking the Second Amendment very seriously. The U.S. District Court for the Northern District of Texas, which initially granted the government's request to dismiss the case in September 2011, thought that since "Congress identified a legitimate state interest-public safety-and passed legislation that is rationally related to addressing that issue," neither the Second Amendment nor equal protection of the law mattered. The court's reasoning went like this: Congress did it, they thought they had their reasons, that settles it.
A panel of the Fifth Circuit Court of Appeals then decided that the Second Amendment didn't really have bearing on this case. Why? Certain types of people had been barred from gun ownership even back in the Founding era. Additionally, in the 19th and 20th centuries various laws prevented minors from owning weapons when the age of majority was still 21. (In the Founding era, though, 18- to 20-year-olds were part of the armed militia.)
The Fifth Circuit also seemed to invent a new comparative responsibility doctrine for applying full constitutional rights. The Second Amendment, the judges found, only "protects 'law-abiding, responsible' Citizens." And "Congress found that persons under 21 tend to be relatively irresponsible."
In a failed attempt to get the Fifth Circuit to rehear the case en banc, a dissent from Judge Edith Jones in the 8-7 vote wondered when else courts would ever decide that a constitutional right did not apply to "a law-abiding adult class of citizens," mocking the decision's extremely weak version of "intermediate scrutiny," its basis for determining whether the government's restriction furthers an important state interest in a directly relevant way.
The Supreme Court has not defined what level of judicial scrutiny should apply to Second Amendment cases. It has rejected as a guideline mere "interest balancing," in which a court decides whether the benefits of a given restriction outweigh its costs to the citizen. Same with a "rational basis review," in which the government merely has to prove that the rights-restriction is rationally related to furthering some state goal.
Lower court application of "intermediate scrutiny" to Second Amendment cases has curtailed the expansion of gun rights in many post-Heller cases. Alan Gura, the lawyer who won both Heller and McDonald before the Supreme Court, says that the doctrine here "is not the intermediate scrutiny that's usually applied in constitutional cases, such as gender-based discrimination under the Equal Protection Clause." Under real intermediate scrutiny, Gura contends, "post-hoc rationalizations are insufficient, and the government bears the burden of showing a substantial fit between an important interest and the regulation at issue." Yet under Second Amendment intermediate scrutiny as applied by lower courts, "the legislative excuses or police declarations are given presumptive weight, and the burden is laid upon the challengers. Sometimes the government is required to come back with more evidence, but this appears to largely be a pro forma step. Most (but not all) laws survive this analysis."