Op-Ed: Did the Supreme Court raise its hand on the blockbuster gun case hearing on Wednesday?



For years, cities across the country have limited who can carry guns in public. The Supreme Court will soon decide whether these limits violate the Second Amendment. The effect can be startling — a . difference between a few hundred guns and hundreds of thousands of guns On the streets of Los Angeles, New York City or Washington.

With the stakes so high, commentators have naturally speculated about the outcome. Given the court’s conservative majority, many expect the court to dramatically Extend the right to carry firearms in public.



Quietly, though – in a rare action taken through the court’s docking procedures – some of the court’s conservative justices may have drawn their hands. What he reveals is a fact-sensitive approach to the matter that should give gun safety supporters reason for cautious optimism.

Start with a bit from Supreme Court 101. When the losing party in a lower court wants to obtain Supreme Court review, it files a petition for a “writ of certificate”. The most important page of this petition is the first, which puts forward the question raised by the case. as a court explain your own rules“Only questions raised by or properly included in the petition shall be considered by the Court.” Thus the “question presented” determines the scope of the court’s analysis.



Four judges are required to vote in favor of petitioning a “certificate”. And in almost every given case, the judges voted to take the question posed in the petition verbatim. (Sometimes judges will limit their review to one of several questions in a petition, or add an opening question to illustrate the court’s power to hear the case.)

In cases After the court initially decided to hear the term, the judges accepted the exact wording of a question presented in all substantiated petitions—all, ie, except in the historic gun rights case. New York State Rifle and Pistol Assn. vs bruen, In this case, he took the important step of rewriting the question posed, and thereby changing the trajectory of the matter.



Rewriting a question may seem trivial. It’s not. In the last period, out of 58 cases, the Supreme Court rewrote the question presented Only one, Clearly, then the judges decided in that case Based solely on the revised question, holding that an earlier decision by the Court does not apply retrospectively. The same was true the year I clerk in court: Justice again just one question and proceeded to decide the matter on a fresh ground.

In the gun case of the word, modification seems equally important.

Current New York law forbids individuals to carry a gun in public unless they can demonstrate a “special need” for self-defense. In challenging this law, original certified petition It presented the question: “Does the Second Amendment allow the government to prohibit common law-abiding citizens from carrying handguns outside the home for self-defense.”

For gun rights activists, the answer is unclear as all law-abiding citizens should have the right to carry a gun in public, regardless of their specific need. And if conservative judges had agreed strongly, perhaps the petition would have been accepted in writing sooner.

but that did not happen. as a court list of decisions Shows, the justices first discussed the certified petition at a private conference in March before arguing again at two additional conferences in April. At each convention, however, Conservative judges failed to produce the four votes needed to give a review. (Any liberal justices are unlikely to have voted to approve the case because they almost certainly agreed Lower court ruling upholding New York law,

Then, at another convention held in late April, judges voted to approve the case.

Did it change? Record tells only one thing: Court rewritten the question, limiting it to asking “whether the state has violated the Second Amendment by denying the petitioners’ applications for concealed carry licenses for self-defense.”

The rewritten question focused on the first court review in the case of concealed-carry rather than open-carry, license – a sensible move because this is the type of license for which the petitioners originally applied.

The second change is more important. instead of asking about the right of All As for law-abiding citizens carrying guns in public, the court’s rewritten question focused on just the original two petitioners — individuals who were denied special needs licenses by New York City. In doing so, the judges have made it clear that the specific, factual circumstances surrounding the applications will be critical to their analysis. (Otherwise, the original question posed would have sufficed.)

So, what are the specifications of the applications? One of the petitioners, Robert Nash, clarified in his application that he needed a concealed-carry license because “Recent robbery incident in the area“Around her home, including a robbery that took place on her street a few days before she filed for her license. Yet the New York Licensing Authority still rejected her application. By contrast, the other petitioner, Brandon Koch openly admitted in his application that he “Do not face any special or unique danger for his life. ,

By training the question presented on these facts, the court hints at a result that both sides should be able to coexist in a gun debate.

State laws that condition a public right on a demonstrated need for self-defense may be constitutional, taking into account a long historical tradition of similar laws. So New York would be free to deny licenses to applicants such as Coach who do not have special needs, thus significantly reducing the number of guns on the streets. But states cannot use a special needs requirement as a de facto restriction. All public transport. Doing so would violate the Second Amendment rights of those facing real and specific threats like Nash.

The Supreme Court has started its 2021-22 term with its Minimum Approval Rating in decades. A fact-sensitive, centrist regime on gun rights would go a long way toward strengthening its public legitimacy.

Aaron Tang is a professor of law at UC Davis and a former clerk to Supreme Court Justice Sonia Sotomayor. @AaronTangLaw

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