Advocacy groups that emerged in the wake of mass school shootings in recent years are urging the U.S. Supreme Court not to broaden the Second Amendment right to keep and bear arms as the justices consider a gun rights case now before them.
The groups filed friend-of-the-court briefs in New York State Rifle & Pistol Association v. City of New York (No. 18-280), which was 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 2018 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 came from Everytown for Gun Safety, a group formed 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 New York City case 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.
Regulation on Gun Transport
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 amended 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 out of the city, and New York state made a relevant change in state law. The city then urged the justices to dismiss the appeal as moot.
“So what’s left of this case?” Justice Ruth Bader Ginsburg said during last week’s arguments. “The [challengers] have gotten all the relief that they sought. They can carry a gun to a second home. They can carry it to a practice range out of state.”
Paul D. Clement, the lawyer for the challengers, said relevant changes in state and city law did not give the challengers all they sought, such as a declaration that the former transport ban violated the Second Amendment.
Other members of the court’s liberal bloc appeared to agree the case was moot.
The city “has thrown in the towel,” Justice Sonia Sotomayor said to Clement. “You’re asking us to opine on a law that’s not on the books anymore.”
Among the current members of the court, Chief Justice John G. Roberts Jr., Justice Clarence Thomas, and Justice Samuel A. Alito Jr. were in the majority in the Heller decision. Thomas, in a 2017 dissent from a denial of review, said the lower courts were treating the Second Amendment “as a disfavored right.” Justice Neil M. Gorsuch joined that opinion.
Gorsuch and Alito suggested during the arguments that they favored ruling on the merits of the case, and possibly expanding Second Amendment rights as sought by the challengers.
“Unless a total ban on taking [a gun] to a firing range would be consistent with the Second Amendment, it follows that the Second Amendment, under at least some circumstances, protects the possession of a handgun outside the home,” Alito said.
The court’s newest member, Justice Brett M. Kavanaugh, whose views on the Second Amendment drew considerable attention during his confirmation hearings last year, said nothing during the hourlong argument.
Meanwhile, Roberts gave some indications he might agree that the case was moot. Such a ruling would postpone the debate, but only temporarily, as other challenges to state and local gun restrictions are making their way through the courts.
Mass school shootings were not mentioned inside the courtroom, but as the justices heard arguments, a rally led by gun control advocates took place on the sidewalk and street outside the court.
Among those who spoke were Randi Weingarten, the president of the American Federation of Teachers; and Aalayah Eastmond, a survivor of last year’s mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla.
“This suit uses a law that no longer exists to push for policies and extreme interpretations of the Second Amendment most of this country does not agree with,” said Eastmond, now a college student. She hid behind the body of classmate Nicholas Dworet, who was killed in the Parkland shooting.
A decision in the case is expected by next June.
A version of this article appeared in the December 11, 2019 edition of Education Week as Groups Weigh In as High Court Hears Guns Case