The gun-control debate might be about to enter a new arena.
The U.S. Supreme Court will announce as early as today whether it will hear a constitutional challenge to a century-old New York state law that requires people seeking to carry a handgun in public to show a special need for self-protection.
The case would thrust the justices into the middle of the gun-policy debate raging in Washington and statehouses around the nation in the aftermath of the Connecticut school shooting. The issue of public possession has divided lower courts and would almost certainly do the same at the Supreme Court, which backed gun rights in 5-4 decisions in 2008 and 2010.
“It is only a matter of time before the justices hear a case about public possession of guns,” said Adam Winkler, a professor at the University of California at Los Angeles School of Law and the author of a book on the history of the gun-rights battle.
In upholding New York’s law, which requires applicants to show “proper cause” to get a permit to carry a weapon, a federal appeals court pointed to what it called “a longstanding tradition of states regulating firearm possession and use in public because of the dangers posed to public safety.”
The measure is being challenged by five residents of New York’s Westchester County in an appeal supported by 20 states and the National Rifle Association.
The state “treats the carrying of handguns for self- defense not as a right but as an administrative privilege lying beyond the reach of most people,” the residents, led by Alan Kachalsky, argued in court papers.
New York Attorney General Eric Schneiderman countered that the state’s law “is similar to the types of longstanding laws that courts have repeatedly upheld.”
In 1981, just three states -- Maine, Washington and Vermont -- let typical residents carry weapons in public without giving a reason. Today, about 40 states do.
“This has been a major legal change at the state level,” said Robert Spitzer, a political scientist at the State University of New York in Cortland.
Federal appeals courts are divided on the remaining laws that restrict public possession. A different court struck down an Illinois law that barred most people from carrying a loaded weapon in public, saying it violated the Constitution’s Second Amendment.
A third federal appeals court last month upheld a Maryland law that requires “good and substantial reason” for having a handgun in public. A fourth case, involving a New Jersey law, is now before yet another appeals court.
The legal disagreement stems from ambiguities in the 2008 Supreme Court decision that, for the first time, said the Constitution protects an individual right to bear arms. That ruling focused on gun rights in the home, striking down a District of Columbia handgun ban. A follow-up case in 2010 also involved in-home possession.
In the New York case, the 2nd U.S. Circuit Court of Appeals said that, while the Second Amendment applies in public, the government has greater power to impose restrictions there.
Outside the home, “public safety interests often outweigh individual interests in self-defense,” the three-judge panel said.
The Dec. 14 shooting at Newtown, Connecticut, which killed 20 first graders and six educators, unleashed a flurry of legislative activity around the country, often dividing lawmakers along partisan lines.
New restrictions on guns have passed in New York, Connecticut, Colorado and Maryland, all of which are led by Democrats. More states have moved in the opposite direction: Six relaxed restrictions, including those on carrying guns into churches, schools or workplace parking lots.
Congress is considering legislation that would expand the number of people subject to background checks when they buy a firearm.
The shifting terrain and political combustibility might give the justices pause as they consider whether to dive into the debate.
“The justices have to be concerned about the politics of guns after Newtown,” Winkler said. For now, “the justices may want to steer clear of this issue altogether.”
The case is Kachalsky v. Cacace, 12-845.
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