Alas this morning the Supreme Court declined to review Kachalsky v. Cacace the challenge to New York City’s effective ban on carrying firearms (which I’ve previously discussed). To correct some early media reports, this does not mean that the Court upheld the law or affirmed the decision of the U.S. Court of Appeals for the Second Circuit. It simply means that the scope of the Second Amendment right to keep and bear arms outside the home remains an open question, subject to divergent rulings in the lower courts.
But those lower-court rulings have indeed diverged greatly, creating what lawyers call a “circuit split.” The Second Circuit in Kachalsky applied a nominal intermediate scrutiny that ultimately became perfunctory deference to the legislature, with the burden on the plaintiffs to justify the exercise of their rights. The Seventh Circuit, meanwhile, in an opinion by Judge Richard Posner in Moore v. Madigan, struck down Chicago’s complete prohibition on carrying firearms, finding that Illinois could not justify such extreme measures. For “a severe burden on the core Second Amendment right of armed self-defense,” the same court ruled in an earlier case, the government must provide “an extremely strong public-interest justification and a close fit between the government’s means and its end.”” The D.C. and Fourth Circuits, meanwhile, have presumed the constitutionality of legislated restrictions, although D.C. Circuit Judge Brett Kavanaugh wrote an important dissent suggesting that the scope of the right to carry should be determined by analogizing historical practice and precedent.
Those who follow firearms policy now recognize that this issue that was left open by District of Columbia v. Heller – the scope of the individual right that the Second Amendment protects – is crying out for resolution. As Cato said in the brief we filed supporting the Kachalsky petition:
The Second Amendment’s scope and the means of assessing restrictions on that right thus remain largely undefined. No other constitutional right has been so left to fend for itself in the lower courts. This Court has not hesitated to seize opportunities to ensure the protection of other constitutional rights—recognizing historically based categorical rules, developing comprehensive methodologies, and announcing robust standards. The Second Amendment merits, and now needs, the same solicitude.
Whatever analytical approach the Court ultimately employs, the time has come to begin filling in the picture that the Court outlined in Heller, and to bring some harmony to the cacophony below.
We’ll now have to wait a bit longer for the Court to do that. As is always the case, the Court doesn’t give reasons for granting or denying review, but it’s possible that the Court didn’t want to take a gun case from the Second Circuit, which has jurisdiction over Connecticut, where the Newtown shootings occurred. Or it may be waiting for Moore v. Madigan, because taking a petition brought by a state government would be seen as less discretionary – and would also allow the Court to focus on a complete ban on the right to carry rather than severe restrictions. (D.C. and Illinois are the only jurisdictions that have flat bans, while 10 states, including New York, “may issue” such licenses in practice, but most rarely do in practice except to celebrities and former law enforcement officers. The vast majority of states “shall issue” carry licenses unless the applicant has a felony conviction or mental illness, while a handful don’t require a license at all.)
In any event, the issue isn’t going away and there’s only so long that the Court will be able to bear the legal incongruity and uncertainty. As former solicitor general Paul Clement – who represented the NRA in McDonald v. Chicago – put it, “They’re eventually going to have to take it.”