SCOTUS hasn’t taken a 2A case in almost a decade. Does this signal that the right to keep and bear arms will no longer be “this Court’s constitutional orphan” (as Justice Thomas once wrote)?

The Supreme Court finally has agreed to hear a 2d Amendment case, the first time since the Heller v D.C. (2008) and McDonald v. Chicago (2010) decisions.

Some of the Justices, and other commentators, have lamented the failure of the Court to take 2d Amendment cases.

In February 2018, Court refused to hear a case challenging a California mandatory 10-day waiting period which had to be observed even for those who already owned guns legally and had gone through the permitting and background check. Justice Thomas wrote in dissent:

The Second Amendment protects “the right of the people to keep and bear Arms,” and the Fourteenth Amendment requires the States to respect that right, McDonald v. Chicago, 561 U. S. 742, 749–750 (2010) (plurality opinion); id., at 805 (THOMAS, J., concurring in part and concurring in judgment). Because the right to keep and bear arms is enumerated in the Constitution, courts cannot subject laws that burden it to mere rational-basis review. District of Columbia v. Heller, 554 U. S. 570, 628, n. 27 (2008). But the decision below did just that…. If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court. Because I do not believe we should be in the business of choosing which constitutional rights are “really worth insisting upon,” Heller, supra, at 634, I would have granted certiorari in this case…. Our continued refusal to hear Second Amendment cases only enables this kind of defiance. We have not heard argument in a Second Amendment case for nearly eight years. Peruta v. California, 582 U. S. ___, ___ (2017) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 7). And we have not clarified the standard for assessing Second Amendment claims for almost 10. Meanwhile, in this Term alone, we have granted review in at least five cases involving the First Amendment and four cases involving the Fourth Amendment—even though our jurisprudence is much more developed for those rights. If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari…. The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights. The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message. * * * Nearly eight years ago, this Court declared that the Second Amendment is not a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). By refusing to review decisions like the one below, we undermine that declaration. Because I still believe that the Second Amendment cannot be “singled out for special—and specially unfavorable—treatment,” id., at 778–779 (majority opinion), I respectfully dissent from the denial of certiorari.

The Supreme Court just agreed to hear a challenge to a New York City law barring transport of lawfully owned firearms except to one of six licensed firing ranges. The case is New York State Rifle & Pistol Association Inc. v. City of New York.

The Petition for Certiorari described the Question Presented:

QUESTION PRESENTED New York City prohibits its residents from possessing a handgun without a license, and the only license the City makes available to most residents allows its holder to possess her handgun only in her home or en route to one of seven shooting ranges within the city. The City thus bans its residents from transporting a handgun to any place outside city limits—even if the handgun is unloaded and locked in a container separate from its ammunition, and even if the owner seeks to transport it only to a second home for the core constitutionally protected purpose of self-defense, or to a more convenient out-of-city shooting range to hone its safe and effective use. The City asserts that its transport ban promotes public safety by limiting the presence of handguns on city streets. But the City put forth no empirical evidence that transporting an unloaded handgun, locked in a container separate from its ammunition, poses a meaningful risk to public safety. Moreover, even if there were such a risk, the City’s restriction poses greater safety risks by encouraging residents who are leaving town to leave their handguns behind in vacant homes, and it serves only to increase the frequency of handgun transport within city limits by forcing many residents to use an in-city range rather than more convenient ranges elsewhere. The question presented is: Whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.

In New York City’s Response, it presented its Counter-Statement of the Question Presented:

COUNTERSTATEMENT OF QUESTIONS PRESENTED A New York State law that is not challenged here recognizes two major types of handgun licenses: “premises” licenses and “carry” licenses. Petitioners Romolo Colantone, Efrain Alvarez, and Jose Anthony Irizarry each hold a premises handgun licenses allowing them to keep a handgun in their New York City residence. The City’s implementing rules also permit premises licensees to transport their handguns to and from City shooting ranges for target practice or competition. Petitioner argue that the Second Amendment, dormant Commerce Clause, and right to interstate travel compel the City to afford them broader latitude for transportation of a handgun under a premises license. The questions presented are: 1. Whether this case is appropriate for certiorari review, where it (a) presents no circuit split or conflict with this Court’s precedents, and (b) addresses what petitioners describe as a “one-of-a-kind” municipal rule with “no analog in any other jurisdiction”? 2. Whether the Second Circuit’s application of established constitutional principles to the particular rule here warrants review by this Court?

The case thus is fairly narrow. It doesn’t involve the right to own a firearm in itself. But it addresses how liberal municipalities try to make it so difficult to own a firearm through absurd conditions that it amounts to a de facto ban or undue burden.

Ilya Shapiro of the Cato Institute issued the following statement:

In the decade since the Supreme Court ruled in D.C. v. Heller that the Second Amendment protects an individual right to keep and bear arms, it has declined to take any cases regarding the scope of that right—until now. With this case, the Court can start checking the massive resistance of many states and cities to this important constitutional right. And it can start instructing the lower courts, many of which have treated the right as second-class, how the law works in this area. For law-abiding gun owners and others who wish to exercise their fundamental right to armed self-defense—particularly those who live in places with high crime and woeful policing—this is most welcome news.

Does this mean that the right to keep and bear arms no longer will be a “constitutional orphan,” as Justice Thomas once ruled?



