The Volokh Conspiracy

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There's no time like the present to take a Second Amendment case

Thirteen years after Heller, it's time for the Supreme Court to settle whether the Second Amendment applies outside the home.


In 2008, the Supreme Court decided D.C. v. Heller. Since that date, President Obama served two terms, President Trump served one term, and President Biden has begun his first term. Five members of the Court left through resignation or death: Justice Souter, Stevens, Scalia, Kennedy, and Ginsburg. Only four members from that Court remain: Chief Justice Roberts, and Justices Thomas, Alito, and Breyer.

Over the past thirteen years, a lot has changed. Yet, one thing has remained constant: the Supreme Court has refused to provide any further explanation about the scope of the Second Amendment. We have seen radical shifts in many other areas of the law, but for guns, we are still stuck in 2008. During this time, the lower courts have brazenly resisted Heller at every step. Yet, at least as of June 2020, there were not enough votes to take a gun case.

Now, I presume, the votes are present. Paul Clement has gift wrapped a cert petition with a bow for the Justices to review. NYS Rifle & Pistol Association II would present a simple question: "Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense." Answering this question, yes or no, would settle so much ongoing litigation. The case will be distributed for the March 26, 2021 conference. Keeping with past practice, the Court generally relists a petition once before granting. Thus, on April 1, the Court will decide whether to take this case.

I am confident there are four votes to grant review. Justices Thomas, Alito, Gorsuch, and Kavanaugh were all eager to review the underlying issue in NYS Rifle & Pistol Association I last term. But that dispute was deemed moot. Clement's current petition has no vehicle problems. He explains:

The circuits are deeply split, and no other circuit is likely to join the fray because the regional circuits that have not weighed in generally coincide with regions where state governments value and respect Second Amendment rights. Thus, the nation is split, with the Second Amendment alive and well in the vast middle of the nation, and those same rights disregarded near the coasts. Whatever else the framers intended in enshrining the Second Amendment in our charter of fundamental freedoms and guaranteeing rights to "keep and bear arms" to all "the people," it was not to tolerate a nation divided on an issue this significant. This Court should grant plenary review. 

However, if the Court declines to grant review, we can draw an unwelcome inference: there is uncertainty over how Justice Barrett will vote. I am skeptical of this outcome. During her tenure as a circuit judge, Barrett wrote a thorough Second Amendment dissent. It was brilliant. Randy and I excerpted it for our casebook.

I will keep my eyes peeled for April 1, or perhaps April 5. If this petition is neither granted nor denied, we can presume that a dissent from denial is being prepared. And the Second Amendment will remain in limbo for the foreseeable future.