WASHINGTON – Guns will be on the table Friday when the Supreme Court meets in private conference to consider potential cases for next fall’s docket.
Just figuratively, of course. The petitions scheduled for potential discussion include three that challenge state or federal gun- control laws.
None of those cases directly raises the next big legal issue in the national debate over guns: whether the right to keep a gun at home for self-defense extends to public places. The justices could choose to take on that issue now, but it would be a stretch.
However, a federal appeals court panel’s divided ruling last week in a California case makes it more likely that the question of guns outside the home will be heading to the high court soon.
Ever since Justice Antonin Scalia wrote for a divided court in 2008 that the Second Amendment to the Constitution protects the right to possess guns at home, the question of public places has been looming. Many states impose restrictions, such as requiring a demonstrated need to carry a gun, whether concealed or in plain sight. Most lower courts have upheld those restrictions.
To date, the biggest split from that trend involved an Illinois law that was much more restrictive than those in other states. Its ban on carrying concealed weapons in nearly all circumstances was struck down by a 7th U.S. Circuit appeals court panel. Rather than appealing to the Supreme Court, however, the state amended the law to allow for public possession, with restrictions.
The question for the court to answer, eventually, is whether such restrictions are constitutional. The high court has batted down several petitions in recent years from firearms groups rather than answer that question. After the December 2012 school shootings in Newtown, Conn., the issue became more politically charged.
Now, however, calls for tougher gun control laws are waning; President Obama barely mentioned it in his State of the Union Address last month.
“I think the Newtown effect is fading,” says Adam Winkler, a UCLA law professor and author of Gunfight: The Battle over the Right to Bear Arms in America.
Friday’s decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals changes the equation. The majority opinion struck down San Diego County’s restrictions as a violation of Second Amendment rights. It may be reviewed by the full appeals court, but if the ruling holds, it would represent a clear split with other appeals court rulings that have upheld restrictions.
“The Second Amendment does require that the states permit some form of carry for self-defense outside the home,” the panel said. “States may not destroy the right to bear arms in public under the guise of regulating it.” The petitions to be discussed at this Friday’s high court conference focus on gun rights for 18- to 20-year-olds and challenges to laws that restrict interstate gun transfers. Although the justices could choose one of those cases to take on the question of public possession, it is unlikely
Soon, however, the court will consider a petition that presents the issue squarely. Opponents of New Jersey’s restrictions on carrying guns in public have asked the justices to overrule a 3rd Circuit appeals court ruling in Drake v. Jerejian that upheld the state law. Now that the 9th Circuit has ruled the other way, either case could provide a Supreme Court showdown.
“Drake presents very strong splits on carrying outside the home and the need for evidence in Second Amendment cases,” says Alan Gura, the lawyer for those challenging New Jersey’s law. After Friday’s ruling by the 9th U.S. Circuit against San Diego County’s restrictions, he says, “That just became much stronger.”
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