Antonin Scalia

The Three Most Important Ongoing Second Amendment Cases

Addressing who can own guns, where they can carry them, and whether guns can be transported to a second home.

(Emily Stanchfield / Foter.com / CC BY)

Since the 2010 Supreme Court case McDonald v. Chicago, which applied the ruling in the 2008 Heller case (which said the Second Amendment guarantees an individual right to bear arms) to states and localities, the Court has so far evaded any new case about the limits and meaning of the Second Amendment.

Those two cases, though, did not resolve all the important questions about how and when and why the government can restrict Second Amendment rights. Heller and McDonald said that the right to possess commonly used weapons for self-defense in the home cannot be infringed, but Justice Antonin Scalia in his majority opinion in Heller explicitly said this didn't mean anything goes when it comes to Americans and their guns.

Many other cases that try to define the whos, whens, and hows of our Second Amendment rights are percolating through the lower courts, and some are trying to wend their way to the Supreme Court.

Here are three of the most relevant active cases involving the Second Amendment, ones that promise to expand Second Amendment liberty, and resolve some of the core issues left unresolved by Heller and McDonald. Two of them will likely be considered for certiorari by the Supreme Court (though whether they will take them up is always hard to predict).

Next: NRA v. BATFE

1. NRA v. BATFE. This case challenges the 1968 prohibition on licensed gun dealers selling handguns or handgun ammo to adults between the ages of 18-20. (They can buy long guns, such as rifles or shotguns, and they are legally allowed to possess handguns, but their ability to obtain them is quite restricted if licensed dealers can't sell to them.) The case has dragged on since 2011, so a new plaintiff had to be added as the original pair reached age 21. The NRA and their aggrieved plaintiffs argue that the law violates their Second Amendment rights and their rights under the equal protection clause of the Fifth Amendment.

Two lower courts decided that 18-20-year-olds have no rights under the Second Amendment, never mind Heller. Various other laws kill Second Amendment rights for categories such as felons or those adjudicated mentally ill. The petition for certiorari from the plaintiffs defines the question the case must settle as "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, the equal protection guarantee, and this Court's precedents." That question has potential relevance beyond the specific class of 18-20-year-olds.

The lower courts' opinions in NRA v. BATFE show they are not taking the Second Amendment, even post-Heller, seriously. "It is unthinkable," as the cert petition states, "that a court would allow Congress to declare law-abiding individuals in the first three years of their legal majority too 'irresponsible' to be entrusted with First Amendment rights or to exercise fundamental unenumerated rights to autonomy."

Still, the U.S. District Court for the Northern District of Texas, in initially granting the government summary judgment 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—the ban" neither Second Amendment nor equal protection mattered. Congress wanted to do it, they did it, they thought they had their reasons, that settles it.

The Fifth Circuit Court of Appeals took up the case, but a panel of the court decided that since some categories of people had been barred from gun ownership even in the Founding era, and that since in the 19th and 20th centuries various laws prevented minors from owning weapons when the age of majority was still 21, that the Second Amendment likely didn't have any bearing on this case (even though in the Founding era, irrespective of ages of majority, 18-20-year-olds were part of the armed militia).

Just to be sure, the Fifth Circuit decided that even if the Amendment did apply, if the court applied their version of intermediate scrutiny to the question of whether the law violated a right, that the right only "protects 'law-abiding, responsible' Citizens" and that "Congress found that persons under 21 tend to be relatively irresponsible." There you go, though in a failed (in an 8-7 vote) attempt to get the Fifth Circuit to rehear the case en banc, a dissent from Judge Edith Jones wondered in what other area courts ever decided a constitutional right did not apply to "a law-abiding adult class of citizens" and mocked the decision's extremely weak version of "intermediate scrutiny."

That kind of intermediate scrutiny applied to Second Amendment violations has crushed many lower court gun cases post-Heller. Alan Gura, the lawyer who won both Heller and McDonald before the Supreme Court, says that "this 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, 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. Under Second Amendment intermediate scrutiny, 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."

The Supreme Court is expected to hold a hearing on whether to take on this case in January. The cert petition spells out what's at stake: "This case is part of a pervasive pattern of stubborn resistance to this Court's holding that the Second Amendment secures a right that is not just individual, but fundamental."

Next: Drake v. Filko

2. Drake v. Filko. This suit challenges New Jersey's Handgun Permit Law for carrying weapons outside the home, a law upheld so far by both the U.S. District Court for the District of New Jersey and the Third Circuit Court of Appeals. The plaintiffs argued that requiring a potential gun carrier to prove to the police a "justifiable need" involving specific previous threats is an unconstitutional prior restraint on their Second Amendment rights.

The Third Circuit decision by Judge Ruggero Aldisert declares baldly that "the requirement that applicants demonstrate a 'justifiable need' to publicly carry a handgun for self-defense qualifies as a 'presumptively lawful,' 'longstanding' regulation and therefore does not burden conduct within the scope of the Second Amendment's guarantee."

That's a bold evasion—whether it is lawful is exactly what's at issue and merely presuming it is without argument is bizarre, though theoretically based on a phrase used by Scalia in Heller to refer to how such laws as those barring the mentally ill from owning guns or barring carrying guns in certain places such as schools or government buildings are "presumptively lawful" and ok even under Heller's ruling.

Aldisert is a mensch, though, and went ahead and considered whether if the law implicated the Second Amendment—though he doesn't think it does—the law would stand up to "the applicable intermediate level of scrutiny."

Yes it does, Aldisert says, because "The predictive judgment of New Jersey's legislators is that limiting the issuance of permits to carry a handgun in public to only those who can show a 'justifiable need' will further its substantial interest in public safety…. To be sure, New Jersey has not presented us with much evidence to show how or why its legislators arrived at this predictive judgment."

No evidence? No problem: "As the District Court correctly concluded, New Jersey's legislature 'has continually made the reasonable inference that given the obviously dangerous and deadly nature of handguns, requiring a showing of particularized need for a permit to carry one publicly serves the State's interests in public safety.'" That supposed "reasonable inference" is all the judge needed to bar a vast number of New Jerseyans from tools of self-defense they might need outside their home.

Eugene Volokh, the UCLA law professor and founder of the influential legal blog Volokh Conspiracy, thinks chances are decent that the Supreme Court will take up Drake; a filing for certiorari to them is expected in January. Volokh wrote in July that:

There is something of a split between the circuits and state supreme courts that have upheld such restrictive schemes [on public carry], and the Seventh Circuit, which struck down the Illinois law; and while the Illinois law was an unusually broad carry ban, I think the logic of the Seventh Circuit decision is indeed contrary to that of the other decisions….The odds are still against cert — they almost always are — but I'd say that there's at least a 25% chance or so of the Supreme Court agreeing to hear this case.

Next: New York State Rifle and Pistol Association [NYSRPA] v. City of New York

3. New York State Rifle and Pistol Association [NYSRPA] v. City of New York. This one, filed in the U.S. District Court for the Southern District of New York in March, is more a sentimental favorite than one on potential fast track to the Supreme Court. But the facts at issue aggravatingly expose the sort of asininely picayune restrictions on a core constitutional right that localities indulge in—even when their obvious effect is to reduce the relative safety of citizen gun ownership by making gun training harder.

New York City, you see, has its Title 38 that prohibits licensed handgun owners (and you must be licensed) from taking their guns outside their home or the city, even to their own second homes outside the city if they have one, or to any shooting practice outside the city. (They can take their guns outside the city to hunt, but only within the state and only with a separate permit.) In the city there is only one public shooting range, and it generally takes at least five days to get an appointment.

A decision on a motion for a preliminary injunction on the state against enforcing Title 38 had been stayed awaiting the resolution of a different case, Osterweil v. Bartlett, currently at the Second Circuit Court of Appeals, which concerns similar issues.

Osterweil challenged the constitutionality of New York denying him a gun possession license after he told them that his New York address was no longer his primary address, but just a vacation home. (This is another case in which a district court determined that "intermediate scrutiny" meant the law could stand, since demanding that licensees have a primary domicile in New York suits the state's reasonable need to "to monitor its licensees more closely and better ensure the public safety.")

One thing Osterweil would resolve is whether the New York State Court of Appeals considers "an applicant who owns a part-time residence in New York but makes his permanent domicile elsewhere eligible for a New York handgun license in the city or county where his part-time residence is located?" In October, that court decided that someone would be eligible for a license in his or her part time residence.** That could mean the plaintiffs' argument in NYSRPA v. New York that the New York City law leaves them defenseless in any other home is blunted, and the restriction on their right to self-defense would seem less extreme.

But that an American's ability, post-Heller, to move his own property about for constitutionally protected self-defense anyplace—his home, his second home, a friend's home—is still being stymied by city law is a sure sign that the Supreme Court has more explaining to do on many issues to ensure Heller's spirit, and not just its letter, will live.

**Correction: An earlier version of this article said that determination in Osterweil hadn't happened yet.