Advocacy groups that emerged from mass school shootings in recent years are seizing an opportunity to urge the U.S. Supreme Court not to broaden the Second Amendment right to bear arms.
The groups have filed friend-of-the-court briefs in a potentially major gun-rights case from New York City that will be argued Dec. 2.
“Young Americans nationwide have taken a stand,” says a brief from the March for Our Lives Action Fund, which formed after the 2017 mass shooting at a high school in Parkland, Fla., that killed 17 students and school employees. “These young people—all too familiar with mass shootings and other forms of gun violence—have a vital interest in ensuring that the Constitution is interpreted to allow the political process at the local, state, and federal levels to enact gun violence prevention measures that will protect all Americans, in all communities.”
Another brief comes from Everytown for Gun Safety, a group formed from a number of anti-violence efforts following the 2012 mass shooting at Sandy Hook Elementary School in Newtown, Conn., in which a shooter killed 20 children and six adults.
The Everytown brief urges the Supreme Court not to use the case of New York State Rifle & Pistol Association v. City of New York (No. 18-280) to issue a broad opinion on “the scope of the right to bear arms outside the home.”
Meanwhile, the National Education Association filed a brief urging the court not to retreat from its statement in the landmark 2008 Second Amendment decision, District of Columbia v. Heller, that “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” were presumptively constitutional.
“This court should reject any constitutional standard ... that would inhibit the ability of state and local legislatures and school boards around the country to grapple with how to best protect students from the threat of gun violence,” the NEA brief says.
A Regulation on Transporting Guns
These briefs are filed in a case that, on the surface, is not about guns near schools or school shootings. But since the ruling in Heller, which recognized a Second Amendment right of individuals to keep guns in the home, and a 2010 decision that clarified that the right applied to regulations by the states, the Supreme Court has steered clear of gun-rights cases.
“Since Heller, the lower courts have struggled with questions such as whether states and municipalities may prohibit individuals from carrying guns outside the home,” said Irving L. Gornstein, the executive director of the Supreme Court Institute at Georgetown University Law Center. “The court has refused to grant [review] in any case presenting that question, up until now.”
The New York City case involves a recently withdrawn city regulation that barred the transport of licensed handguns outside the city limits, such as to shooting ranges or second homes. The regulation was challenged by the state rifle and pistol group, an affiliate of the National Rifle Association, as well as several individuals with licensed handguns, as a violation of the Second Amendment.
Two lower federal courts upheld the regulation, and the Supreme Court granted review. After the high court did so, New York City amended the rule to allow the transport of licensed guns, and New York state made a relevant change in state law to the same effect. The city then urged the justices to dismiss the appeal as moot because the challengers had gotten all the legal relief they had sought. (The rules still require guns to be transported unloaded and locked in a carrying case, provisions that are unchallenged.)
The challengers responded that the case still presented a live controversy, because among other reasons he city did not acknowledge the Second Amendment right of licensed gun owners in the city to transport their weapons. They also suggested the city was in effect trying to game the system by defending its former regulation for five years and relaxing it only after the Supreme Court took up the case.
The justices told the parties they would consider the mootness question as the same time they take up the merits of the case.
“The court is going to have to decide this question of mootness against a backdrop of several recent highly publicized episodes of gun violence and heated debate between the two parties about solutions to gun violence,” Gornstein said at a recent panel discussion about the court’s term. “For some, this is a reason to dig in, plunge ahead and decide this case. For others, sitting this one out may be an inviting prospect.”
Highlighting School Shootings
The salience of gun regulation in the wake of school shootings was evident last year during the confirmation hearings of now-Justice Brett M. Kavanaugh. There was a much-dissected flap when Fred Guttenberg, whose 14-year-old daughter Jaime was among those killed in the shooting earlier that year at Marjory Stoneman Douglas High School in Parkland, sought to shake hands with Kavanaugh and lobby him on school violence. Kavanaugh refused to shake Guttenberg’s hand, but later said he was unaware of who the father was and said he would have shaken his hand and expressed sympathy if he had realized who Guttenberg was.
Meanwhile, a student who had survived the Parkland shooting urged the Senate Judiciary Committee to oppose Kavanaugh because of the then-nominee’s views that high court precedents limited regulation of certain certain semi-automatic weapons.
That student, Aalayah Eastmond, is among several personal stories featured in the March for Our Lives Action Fund’s brief in the New York City case. Eastmond hid behind the body of classmate Nicholas Dworet, whom she learned later died in the violence at Stoneman Douglas High School.
The brief highlights eight other young people who have been touched by gun violence at schools, churches, and city streets.
“These students, and many others like them, have responded to gun violence by seeking change,” says the brief, adding that March for Our Lives “urges the court to preserve the latitude that legislatures at the federal, state, and local levels enjoy to enact public safety measures that limit the carnage visited by gun violence.”
The challengers of the New York City regulation did not directly respond to the school-related briefs. They argue in a brief that “Second Amendment rights were never understood as confined to the home.”
The Trump administration backs the challengers. A brief filed by U.S. Solicitor General Noel J. Francisco references an 1871 Texas court decision and says “the tradition of prohibiting the carrying of arms in sensitive places, such as ‘a church,’ ‘a lecture room,’ or ‘a ball room,’... fairly supports modern laws prohibiting the carrying of arms in other sensitive places, such as school zones.”
But New York City’s former ban “subjects adults to more severe restrictions than Congress considered necessary for children, and it subjects the entire city to more severe restrictions than Congress considered necessary for school zones,” Francisco says in the brief.
The administration’s brief notes that a federal law that bars possession of guns in a school zone contains exceptions for weapons that are unloaded and in a locked container or for a person with an unloaded weapon who is lawfully “traversing school premises for the purpose of gaining access to public or private lands open to hunting.”
A brief by the National Sheriffs’ Association in support of the challengers puts that tradition in historical perspective by quoting a biography of President John Adams.
“John’s zest for shooting prompted him to take his gun to school, secreting it in the entry so that the moment school let out he might dash off to the fields after crows and squirrels,” says the 1969 work on the second president by Anne Burleigh.
‘Unique Conditions’ in the Big Apple
New York City, in defending the merits of its former restrictions, points out that the city of 8.5 million is not only the nation’s most populous but also the most densely populated major city, made further crowded by some 65 million annual tourists.
“These people move through the city’s crowded streets and fill its public-transportation system, taking 1.7 billion subway rides each year,” the city says in a brief. “They also travel to, near, and around a staggering concentration of sensitive places such as schools, day-care centers, government buildings, playgrounds, and places of worship. ... The city’s unique conditions have long coincided with close regulation of deadly weapons in public, including firearms.”
There is one more friend-of-the-court brief urging the Supreme Court not to use the New York City case to issue any broad Second Amendment ruling. Brady, formerly the Brady Campaign to Prevent Handgun Violence, teamed up with its youth-oriented affiliate, Team ENOUGH, on the brief.
“What the Framers meant by ‘keep and bear arms’ in 1791 may be debatable, but today’s reality is not,” says the Brady brief. “More than 1 million people have been shot in America over the past decade, of whom more than 300,000 were killed.”
And young people, the brief says, “have grown up in an era in which school shootings and lockdown drills are a new norm.”
A version of this news article first appeared in The School Law Blog.