Expanding the Supreme Court is Now Our Last Chance to Protect Gun Control
The Supreme Court's decision to take a case challenging New York's concealed carry law is proof that no rights are safe unless we reform the courts.
Shortly after President Trump nominated Amy Coney Barrett to the Supreme Court, I shared a theory: court packing is inevitable. It may be an incredibly difficult sell now, but when the Supreme Court guts nearly every progressive priority—from voting rights legislation to campaign finance reform—voters will eventually demand change. What is now a hypothetical debate will eventually become an existential decision for our democracy: either Democrats expand the court, or Americans will live under the rule of six unelected far-right partisans for a generation.
In other words, a breaking point is coming, and it’s coming soon.
This morning, the Supreme Court granted certiorari in a case challenging legislation in New York that requires individuals to get a permit before carrying a concealed weapon. If conservatives are successful in this case—and it’s hard to imagine they won’t be—it will be legal for nearly everyone across the United States to carry a concealed handgun in public. Meanwhile, everything from Biden’s executive actions to curtail gun violence to various gun control measures being negotiated on Capitol Hill will likely be rendered moot. For Democrats, 86% of whom support stricter gun laws, the choice could not be clearer: either we reform the courts, or one of the most pressing progressive priorities will effectively be taken off the table.
Let’s back up. In 2008, the court ruled in District of Columbia v. Heller that the Second Amendment protects an individual’s right to keep a firearm in their home for self-defense. The decision, written by Justice Scalia, appears limited on its face, but lower courts have spent years wrestling with how to apply it. Last year, after the Supreme Court threw out a case challenging another gun control measure, Justice Brett Kavanaugh wrote that the court should clarify its ruling in Heller because lower courts “may not be properly applying” it. The court, however, refused to take any of the gun control cases that were currently pending. But then something changed: Amy Coney Barrett was confirmed to the Supreme Court.
Now, with five safe votes in favor of expanding gun rights, the justices decided they will hear New York Rifle & Pistol Association v. Corlett, which will potentially become the Supreme Court’s next landmark Second Amendment ruling. The case is relatively simple. Under New York law (which is similar to the laws of many states), an individual must show “proper cause” to receive a permit to carry a concealed weapon outside the home. The plaintiffs were denied permits by the State of New York, and now ask the Supreme Court to rule that such denials violated their Second Amendment rights. In an illustration of just how seriously Republicans are taking this case, the plaintiffs are represented by George Bush’s Solicitor General, Paul Clement, who led the charge to protect the Defense of Marriage Act and overturn the Affordable Care Act (among many, many other major conservative causes).
To state the obvious: this case presents an existential threat to gun reform. Period. Prior to Justice Barrett’s confirmation, conservatives were concerned about how Justice Roberts would vote if the Supreme Court accepted another major Second Amendment case. But with Barrett—who famously dissented in a case holding that felons could be denied the right to own weapons—conservatives now have their opportunity to expand upon Heller and eviscerate all gun control legislation across the country. While the case does not directly implicate background checks or other gun control measures being considered by Biden and the Democrats, it is hard to see how any of those measures could stand if a state cannot even require a showing of “cause” to carry a concealed handgun in public.
But it’s even worse than that. While the conservatives on the court will likely frame this case as a clarification of Heller, it is anything but that. In fact, Justice Scalia specifically noted in his opinion thirteen years ago that restrictions on the right to carry concealed weapons are constitutional under the Second Amendment. Here’s what he wrote:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.
It’s hard to be any clearer than that. For all intents and purposes, the case the justices accepted this morning has already been decided. But that won’t stop them.
When Kavanaugh and Barrett were nominated, there was a lot of hemming and hawing about precedent, and specifically, whether they would protect landmark rulings like Roe v. Wade. Senator Susan Collins’s statement announcing her support for Kavanaugh, for example, takes comfort in Justice Kavanaugh’s apparent belief that “a long-established precedent is not something to be trimmed, narrowed, discarded, or overlooked.”
It is hard to square that belief with a willingness to hear a case challenging the exact sort of law the Supreme Court stated was constitutional just 13 years ago. And the conclusion is simple: if the 6-3 far-right majority on the Supreme Court is willing to jettison such a clear statement of law within such a short period of time, nearly nothing the court has stated in the past, nor any currently protected constitutional right, is safe. Voting rights, abortion rights, you name it—it’s all fair game.
Of course, this is not particularly surprising. It was clear the moment Justice Barrett took the bench that this Supreme Court would wreak havoc on whatever progressives decided to do with their power. But instead of aggressively pursuing reform, Democrats have been dragging their feet. Recently, Biden appointed a commission to study the issue of court reform, stacking it with conservative scholars and failing to even give it the power to make policy recommendations. As Slate’s Mark Joseph Stern writes, “it seems obvious that Biden does not really want to pursue court reform.”
The debate about court reform has never been clearer. The United States is already averaging well over one mass shooting every single day. Should the Supreme Court rule in favor of a national right to concealed carry, laws protecting 83 million Americans will immediately be deemed unconstitutional. Court reform is no longer an academic debate—either Democrats expand the courts, or gun control will be the first of many priorities that we will be forced to abandon.