For years, cities across the country have restricted who is allowed to carry a gun in public. The Supreme Court will soon decide whether these limits violate the 2nd Amendment. The effect could be staggering – the difference between one few hundred weapons and hundreds of thousands of weapons on the streets of Los Angeles, New York City or Washington.
With such high stakes, commentators have naturally speculated on the outcome. Given the conservative majority of the court, many expect the court to do so dramatic extend the right to carry firearms in public.
Quietly, however, some of the court’s conservative judges may have shaken hands – in a rare act taken through the court’s documentation procedures. What they have revealed is a fact-sensitive approach to the case that should give supporters of gun security cause for cautious optimism.
Start with a bit of Supreme Court 101. When a party who has lost in a lower court wants to have the Supreme Court review, it files a request for a “subpoena.” The most important aspect of this petition is the first, which raises the question raised by the case. Like the court own rules explain“Only the matters set out in the petition, or fairly included therein, will be considered by the Court.” The “question presented” thus dictates the scope of the court’s analysis.
It takes four judges to vote to grant a “cert” application. And in almost all given cases, the judges vote to accept the question in the petition verbatim. (Sometimes judges will limit their review to one of several issues in a petition or add a threshold issue to clarify the court’s power to hear the case.)
In it cases The court initially decided to hear this word, the judges accepted the exact wording of a question presented in all certifying petitions – all, that is, except the case of landmark gun rights, New York State Rifle & Pistol Assn. towards the Bridge. In this case, they took the essential step of rewriting the question asked, thus changing the course of the proceedings.
Rewriting a question can seem trivial. It is not. Last period, out of 58 cases, the Supreme Court rewrote the issue presented in just one. Apparently, the judges decided then that case solely on the basis of the revised question, finding that an earlier decision of the court does not apply retroactively. The same was true in the year I was a clerk in court: the judges rewrote just a question and went on to settle that case precisely on the new basis.
In the arms case of this term, the revision seems equally crucial.
Current New York law prohibits individuals from carrying a gun in public unless they can demonstrate a “special need” for self-defense. By challenging this law, original certificate application asked this question: “On the second amendment, the government allows to ban ordinary law-abiding citizens from carrying small arms outside the home for self-defense.”
For gun rights activists, the answer is a resounding no, because all law-abiding citizens should have the right to carry a weapon in public, regardless of whether they have a special need. And if the Conservative judges had agreed very much, the petition would probably have quickly been accepted as written.
But that’s not what happened. Like the court docket shows, the judges first discussed the certification request at a private conference in March, before discussing it again at two more conferences in April. At each conference, however, the Conservative judges failed to produce the four votes needed to give a revision. (None of the Liberal judges probably voted in favor of the case because they almost certainly agreed) lower court decision affirming New York law).
So at another conference held in late April, the judges voted to accept the case.
What changed? The journal indicates only one thing: the court rewrote the question asked, which limits it to asking “whether the State’s rejection of petitioners’ applications for covert transport licenses for self-defense violated the second amendment.”
The rewritten question first focuses the court’s review on the issue of concealed permits instead of open permits – a sensible step because it is the type of permit that the petitioner originally applied for.
The second change is more important. Instead of asking for the right to all law-abiding citizens to bear arms in public, the court’s circumscribed questions focus on only the original two petitioners – persons who were denied licenses with special needs by New York. In doing so, the judges have made it clear that the specific, factual circumstances surrounding the applications will be crucial to their analysis. (Otherwise, the original question would have been sufficient.)
So what are the specific applications? One of the petitioners, Robert Nash, explained in his application that he needed a concealed transport license due to a “latest series of robberies in the areaAround his home, including a robbery that took place on his street a few days before he applied for the license. Yet the licensing authority in New York still rejected his application. In contrast, the other petitioner, Brandon Koch, openly admitted in his application that he did “does not face any special or unique danger to his life. “
By training the question on these facts, the court suggests a result that both sides in the arms debate should be able to live with.
State laws that condition the right of the public to exercise a proven need for self-defense could be constitutional, in accordance with a long historical tradition of similar laws. So New York would be free to deny licenses to applicants like Koch who lack a special need, thus significantly reducing the number of guns on the streets. But states must not use a special needs requirement as a de facto ban on all public transport. Doing so would violate the 2nd Amendment for those facing real and special dangers – such as Nash.
The Supreme Court has begun its period 2021-22 with its lowest degree of approval for decades. A fact-sensitive, centered decision on gun rights would go a long way towards strengthening its public legitimacy.
Aaron Tang is a law professor at UC Davis and former Supreme Court Attorney Sonia Sotomayor. @AaronTangLaw
This story originally appeared in Los Angeles Times.