By James Langford | June 4, 2021 | News & Features
There may be no moment in American history that better captures the mythos of the righteous gunslinger than the shootout at the O.K. Corral, a brief but deadly confrontation that earned Wyatt Earp a place in the history books.
The showdown garnered him fame in cinematic and historic fiction, too, with depictions loosely based on real events. But how many “I’m your huckleberry,” afficionados – Val Kilmer portraying Doc Holliday in the 1993 film “Tombstone,” if you must ask – know that the confrontation had its roots in a Tombstone, Ariz., town ordinance banning firearms? And that Earp’s opponents, Ike Clanton and his cowboys, had refused to comply with it, showing up with guns blazing?
Such laws were passed to maintain order in populous towns by giving an edge to armed police officers. Though not uncommon in the frontier territories, they run counter to the now widely-held perception that the Constitution’s Second Amendment was created to give Americans the right to carry weapons wherever they chose.
The validity of that belief – or at least its applicability to a 21st-century U.S. whose population was 4 million when the Constitution was signed and at 331 million is now nearly 100 times larger – is what has driven the furor of debate since the Supreme Court agreed in late April to accept New York State Rifle & Pistol Association v. Corlett.
The case, centered on a New York law that requires licenses for residents to carry guns outside their homes, is in many ways the successor to one that justices declined to hear last year.
The earlier matter – centered on a New York City law that barred residents with gun permits from toting their weapons outside of the five boroughs – was declared moot during Justice Ruth Bader Ginsburg’s last term on the court.
Her death in September 2020, however, gave then-President Donald Trump the chance to make his third Supreme Court appointment, creating a lopsided 6-3 majority for Republican appointees.
While the court narrowed the question it’s considering now to whether the denial of concealed-carry permits to petitioners Robert Nash and Brandon Koch violated their Second Amendment rights, the interpretation “that’s being sought here is so radical,” said Jon Lowy, chief counsel for anti-gun violence group Brady, that it could “condemn Americans to live within the gun violence epidemic that we see every day.”
Such concerns are heightened by the widespread optimism among gun-rights supporters who see the potential for an expansion of gun rights sweeping enough to surpass even the court’s ruling in District of Columbia v. Heller in 2008.
That decision, authored by then-Justice Antonin Scalia – the mentor of Trump-appointed Justice Amy Coney Barrett – overturned decades of case law to establish a guaranteed right to keep guns in individual homes.
“It was a radical ruling,” Lowy said, at odds with over 200 years of consensus “of what the Second Amendment means.”
Former Chief Justice Warren Burger and others had long said the provision posed “no impediment to gun laws regulating civilian gun sales, possession and use,” Lowy added.
That stance was well defined in the high court’s 1939 decision in Miller v. United States, which dismissed the claims of two men convicted of violating the National Firearms Act by carrying a short-barreled shotgun across state lines.
One of the men, Jack Miller, argued the conviction violated his rights under the Second Amendment, which says “a well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
A lower court sided with Miller, but the government appealed and the Supreme Court upheld the conviction, ruling that the weapon in question had no recognized military usage or relationship to maintaining a “well-regulated militia.”
The Second Amendment’s guarantee, the court wrote in its 8-0 opinion, must be weighed in the context of the Constitution’s endorsement of militias, made up of citizen soldiers who were expected to come to the defense of the nation when summoned by Congress and, generally, to supply their own weapons.
“With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment was made,” the court held.
That precedent was the law of the land until the Supreme Court took up the case of Dick Heller, a District of Columbia special police officer denied a permit to keep a gun in his home under local laws that banned unregistered firearms and prohibited registration of handguns altogether.
In a 5-4 decision supported by only the high court’s Republican appointees, Scalia wrote that the D.C. laws in question amounted to an unconstitutional ban on an “entire class of arms that Americans overwhelmingly choose” for lawful self-defense.
He was careful to point out, though, that the right to a firearm in the home shouldn’t be viewed as undermining “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding firearms in sensitive places such as schools and government buildings or imposing conditions on the commercial sale of arms.”
Two years later, in McDonald v. City of Chicago, the court ruled that states as well as the federal government were bound by Second Amendment guarantees, a point that Heller hadn’t addressed.
That was the last time the high court addressed gun rights, though Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh and Neil Gorsuch – all Republican appointees – have indicated they want further review.
They were reluctant to move before Barrett’s appointment, observers say, because they weren’t sure whether Chief Justice John Roberts, an occasional swing vote, would join them in a ruling.
At the most basic level, the case the court has chosen to take up after Barrett’s installation creates an opening to extend the rights established by Heller outside of individual homes, something long sought by the gun lobby.
“The court rarely takes Second Amendment cases,” said Jason Ouimet, executive director of the National Rifle Association’s lobbying arm, the Institute for Legislative Action. “Now, it’s decided to hear one of the most critical Second Amendment issues. We’re confident that the court will tell New York and the other states that our Second Amendment right to defend ourselves is fundamental and doesn’t vanish when we leave our homes.”
It’s an opportunity that owes a considerable debt to GOP success at political hardball.
The court’s perceived rightward tilt is founded on then-Senate Majority Leader Mitch McConnell’s refusal to consider Democratic President Barack Obama’s nomination of Merrick Garland to a seat opened by Scalia’s death nine months before the 2016 presidential election.
The election was too close, the Kentucky Republican argued, and voters deserved to have a say – through their selection of the next president – in what would be a lifetime appointment to the Supreme Court.
As a result, the chance to fill the open seat passed to Trump, who won an Electoral College victory against Democrat Hillary Clinton despite losing the popular vote by nearly 3 million.
Trump appointed Gorsuch to Scalia’s seat, then later named Kavanaugh to succeed Anthony Kennedy, when the Reagan appointee – who had occasionally allied with more liberal justices – retired in 2018.
At that point, the court’s ideological balance appeared status quo, with the liberal wing still made up of Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg.
The dynamic changed with Ginsburg’s death following a battle with pancreatic cancer in late September. The presidential election was less than two months away, and an embattled Trump was facing a well-funded campaign by challenger Joe Biden as well as fierce criticism over his handling of the Covid-19 pandemic.
The president nonetheless moved quickly to name Barrett as Ginsburg’s successor, triggering indignation from Democrats and a promise from McConnell to back her nomination himself and hold a rapid vote in the Senate.
She was confirmed in a 52-48 vote on Oct. 26, with no support from Democratic senators, and sworn in a day later – exactly a week before the election Trump lost.
“The composition of the court is certainly concerning, no question,” said Lowy. Brady, the group he represents, is named for Jim Brady, the press secretary badly injured in an attempt to assassinate President Ronald Reagan in 1981.
Indeed, Barrett was pressed by Democrats during confirmation hearings on her stance toward gun regulation, in part because of her dissent in the 2019 case of Kanter v. Barr, in which a Wisconsin man convicted of mail fraud claimed that he was improperly barred from owning a firearm.
While both federal and Wisconsin laws prohibit gun ownership by felons, which the 7th Circuit Court of Appeals ruled was in keeping with government’s interest in protecting public safety, Barrett took a narrower view.
History, she wrote, shows that legislatures have the power to prohibit only dangerous people from carrying guns and not all convicted felons meet that standard.
Both the federal and state laws would “stand on solid footing if their categorical bans were tailored to serve the government’s undeniably compelling interest in protecting the public from gun violence,” Barrett wrote. “But their dispossession of all felons – both violent and nonviolent – is unconstitutional as applied to Kanter, who was convicted of mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and billing Medicare accordingly.”
Barrett defended that assessment during her confirmation hearings in the Senate, as well as her case-review techniques.
“I spent a lot of time in that opinion looking at the history of the Second Amendment and looking at the Supreme Court’s cases, and so the way in which I would approach the review of gun regulation is in that same way, to look very carefully at the what the original meaning was,” she said. “I promise that I would come to that with an open mind, applying the law as I could best determine it.”
Justices, she added, aren’t monarchs free to impose their own desires on the populace. They “can’t just wake up one day and say, ‘I have an agenda. I like guns. I hate guns. I like abortion. I hate abortion,’” she told lawmakers in October. “You have to wait for cases and controversies, which is the language of the Constitution, to wind their way through the process.”
Regardless, her approach is one appreciated by gun-rights supporters, since they, like Scalia – also a self-described originalist – argue that the country’s founders intended to create a right to individual gun ownership.
The NRA, which has long wielded considerable political clout – particularly on the Republican side of the Congressional aisle – has promised it's prepared to argue that position before the high court.
In fact, the New York Rifle & Pistol Association, one of the named plaintiffs in the case, is the state’s official NRA affiliate in addition to being the nation’s oldest firearms-advocacy group.
Its allies and surrogates are already making their case to the high court in a slew of amicus curiae filings.
For years, lower-court judges have taken advantage of the lack of express guidance from the Supreme Court “to treat the Second Amendment as a second-class right,” the Firearms Policy Coalition argued in one friend-of-the-court brief in January.
They have barred law-abiding citizens from carrying firearms, restricted the ages of adults who can do so and “allowed criminality to be inferred from the mere carrying of a firearm,” the coalition maintained.
Supporters of tighter gun regulation dispute such characterizations: New York maintains its law is intended to protect public safety, and state Attorney General Letitia James promised to show the high court how it does so “in a manner consistent with the Second Amendment.”
At its simplest, the debate over gun regulations is about “how do you balance the plain rights of gun owners against government’s interest with regard to public safety,” said Erwin Chemerinsky, dean of the University of California, Berkeley, and a specialist in constitutional law.
Where the dividing line is, or should be, drawn is often far from clear.
It’s the same with many constitutional rights, a concept that grade-school teachers have explained to students with the misleadingly simple phrase, “my rights end where yours begin.”
“Generally, in our society, conservatives come down much more on the gun rights side and liberals come down much more on the gun control/public safety side,” Chemerinsky said. “I expect we’ll see that kind of split within the Supreme Court.”
A telling point may be whether justices decide what standard of scrutiny should be applied to gun regulations and, if they do, how rigorous that standard must be.
So far, appeals courts are divided on the question.
The 6th U.S. Circuit Court of Appeals, based in Cincinnati, “has been quite explicit about strict scrutiny for this right,” Chemerinsky explained. “Other circuits have rejected that and have done much more of a balancing or two-part test.”
The decision, if there is one, is likely to prove critical to both sides.
“The higher the level of scrutiny, the more likely it is that the law is going to fail,” Chemerinsky said.
At present, the outlook for gun regulations at the high court “doesn’t look good,” said Hannah Shearer, litigation director at Giffords Law Center, an organization named for the former Arizona congresswoman who suffered a severe brain injury in a 2012 assassination attempt in the Tucson area that left six people dead, including a federal judge. “Four justices have previously signaled hostility to gun safety laws and shown they are open to devising a new interpretation of the Second Amendment that limits widely accepted gun regulations.”
The state of New York underscored the risks of such a move when it urged the Supreme Court not to take the Rifle & Pistol Association’s appeal in the first place.
The Empire State’s law “has existed in the same essential form since 1913 and descends from a long Anglo-American tradition of regulating the carrying of firearms in public,” its attorneys argued in a brief submitted to the court. “Under New York’s law, applicants who seek an unrestricted license to carry a concealed handgun in public must establish ‘proper cause.’ This flexible standard, which numerous New York residents have successfully satisfied, generally requires a showing that the applicant has a nonspeculative need for self-defense.”
Without such a need, applicants may be granted a “premises” license that lets them keep a gun in their home or workplace or a “restricted” license that lets them carry one in public for specific purposes such as hunting, target shooting or employment, the state says.
As for plaintiffs Koch and Nash – residents of Rensselaer County, near the state capitol of Albany – they were given restricted licenses for hunting and target shooting rather than the concealed-carry permits they had sought, the state says. The Rifle & Pistol Association says one of its members was also denied a concealed-carry license.
The law under which the licenses were refused was enacted after a 1911 New York Coroner’s Office Report that showed a significant increase in both homicides and suicides committed with concealable firearms, a tide the Legislature sought to stem with a licensing scheme.
Such risks are even more pronounced today, gun-regulation supporters argue, with mass shootings regularly claiming the lives of multiple Americans in the span of hours or even minutes.
Since the 1999 massacre at Columbine High School, in which students Eric Harris and Dylan Klebold killed 13 people and wounded dozens more before committing suicide, such cases have become progressively more common.
In late 2012, Adam Lanza shot 26 people to death at Sandy Hook Elementary School in Connecticut before killing himself. That was followed by the killings of 61 people, including the gunman, during a music festival on the Las Vegas Strip in October 2017; and the massacre of 14 students and three staffers at Marjory Stoneman Douglas High School in south Florida on Valentine’s Day in 2018.
Less than halfway through 2021, eight people have been shot to death at a FedEx facility in Indianapolis by a gunman who then killed himself, and 10 people slain at a supermarket in Boulder, Colo.
“Mass shootings are terrorizing us,” said the Brady Center’s Lowy. “At this moment, there has never been more momentum or support for strong laws that would actually stop our gun violence epidemic.”
The high court has to be aware of the “tremendously dangerous implications of a sweeping decision,” he said, particularly given the Jan. 6 assault on the Capitol that federal police were unable to prevent.
“If you didn’t have D.C.’s strong gun laws, which would be even stronger if it weren’t for misguided interpretations of the Second Amendment, that mob could have been armed with loaded assault weapons,” Lowy pointed out. “If police couldn’t control them when the only weapons they had were pepper spray and a willingness to crush people with doors, now imagine them with a military arsenal.”