For several years, the Supreme Court has been ducking gun-rights cases. In 2008 the justices for the first time declared individuals have a Second Amendment right to keep a handgun in the home. They expanded on that 5 to 4 ruling two years later, clarifying that it applied to all states. And then the court became gun-shy.
The justices lately have declined to hear an appeal in a New Jersey case on the constitutionality of local officials’ discretion over whether to issue permits for the concealed carrying of handguns. The court also steered clear of a case challenging Texas’ ban on concealed carry by people under 21.
This hesitancy may soon end, however, now that a judge has struck down Washington’s ban on carrying a pistol publicly. “There is no longer any basis on which this court can conclude that the District of Columbia’s total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny,” federal Judge Frederick Scullin Jr. ruled in a decision made public on July 26. “Therefore, the court finds that the District of Columbia’s complete ban on the carrying of handguns in public is unconstitutional.” If the ruling is upheld by an intermediate appellate court, the justices could be forced to return to the radioactive Second Amendment.
Adam Winkler, a constitutional law professor at the University of California at Los Angeles, offered intriguing speculation on why the high court has been avoiding firearms cases. “It’s long been suspected that [Justice Anthony] Kennedy signed on to the earlier Second Amendment rulings by the court only after language was inserted allowing for reasonable restrictions on guns,” he wrote in June in an article in Slate. “But the question has lingered: How far would Kennedy allow gun control to go? That question might well have been on the minds of the other justices when they voted not to hear a Second Amendment case this year. With four justices likely in favor of broad Second Amendment rights and another four likely opposed, the scope of the right to bear arms turns on Kennedy. His views may have been sufficiently unclear that neither side wanted to take a risk of a landmark decision coming out the wrong way.”
The Supreme Court’s 2008 ruling in District of Columbia v. Heller, which also came from the nation’s capital, left open whether the Second Amendment precludes not only a ban on gun possession in the home but in the street. The follow-on decision in McDonald v. Chicago, which expanded Heller’s application outside Washington, similarly left unaddressed the public-carry question.
Scullin’s action striking down a local law on constitutional grounds is the sort of legal collision that often attracts the attention of the Supreme Court and may provide an irresistible opportunity to address public carry. One other reason to keep an eye on the latest Washington case: The lawyer behind it, Alan Gura of Alexandria, Va., a talented constitutional advocate, won both the Heller and McDonald cases. Given the judiciary’s slow metabolism, Gura could end up back in front of the justices just in time for the fall 2016 presidential campaign.