The Supreme Court on Friday will consider whether to wade into a growing legal brawl over the scope of the Second Amendment and how far the Constitution goes in protecting Americans’ self-defense rights outside of their homes, with the justices deciding whether to take up three pending gun cases.
Six years ago, in the landmark Heller case, the court established that the Constitution guarantees a personal right to bear arms, but states — and lower federal courts — have made different judgments about what that means.
Now, in the key case, the National Rifle Association has asked the justices to take up a Texas challenge that questions whether states can impose restrictions on guns that the NRA says would be “unimaginable” if it were for free speech or privacy rights.
One of the other two cases involves a separate NRA lawsuit against the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, challenging whether federal law can require handgun buyers to be at least 21 rather than 18. The third case questions a 1968 federal law that prevents anyone without a federal firearms license from receiving or processing handguns bought or brought in from out of state.
“These cases present vital questions for gun policy: where you can carry a gun and who can have one,” said Adam Winkler, a specialist in constitutional law at the UCLA School of Law. “It’s only a matter of time before the Supreme Court has to answer these questions.”
Still, the Supreme Court has denied petitions to hear cases stemming from two federal appeals courts and could refuse to hear the latest challenges as well.
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In the Texas case, state law prevents those younger than 21 from buying handguns and prohibits them from obtaining permits to carry concealed guns in public.
Several plaintiffs, who were ages 18 to 21 at the time, sued. They argued that the bans violate the Second Amendment and the Equal Protection Clause of the U.S. Constitution.
The 5th U.S. Circuit Court of Appeals upheld the Texas law, but other courts have ruled differently on questions about the public’s right to carry concealed firearms.
Most recently, a three-judge panel of the 9th U.S. Circuit Court of Appeals struck down a law in San Diego County that requires applicants for concealed-carry permits to demonstrate “good cause” as to why they need guns for personal safety.
The 7th Circuit ruled against a concealed-carry law enacted in Illinois, and the 2nd, 3rd and 4th circuit courts upheld regulations approved in New York, New Jersey and Maryland, respectively.
Charles J. Cooper, the attorney for the NRA in the Texas case, said he was “hopeful and optimistic” that the court will take up the issue, particularly with the 9th Circuit ruling.
“It widens the conflict within the circuits on the issue,” he said, describing the ruling as “carefully obedient to the Supreme Court’s [ruling] in the Heller case, unlike the 5th Circuit and, quite frankly, other courts.”
The Obama administration has argued that age restrictions are not undue burdens on the exercise of the Second Amendment and said Congress has used evidence linking younger people to handgun-related crime to effectively tailor laws.
Nelson Lund, a constitutional law professor at the George Mason University School of Law, said the justices, who will meet in their regular private conference Friday to decide what cases to hear, could decline to take up any of the three.
“There’s been a lot of action in the lower courts, and the Supreme Court in situations like this often waits for what it thinks is a pretty good case,” Mr. Lund said. “They’re very rarely in a hurry to get these things decided. I don’t think the chances are real high.”
He said it’s more likely that the justices will wait for a case that presents big issues about carrying guns in public — possibly a lawsuit over states that give themselves leeway to judge whether someone needs to carry a concealed weapon.
Those states are known as “may carry” jurisdictions, while other states that presume a person eligible unless they are discounted by dint of criminal record or mental problems are considered “shall carry.”
Edward Leddy, a former director of the Center for the Study of Firearms and Public Policy, said a challenge to a “may carry” law would present stark Second Amendment questions that the court could settle.
He said that as a parole officer for two decades in New York, he handled plenty of cases involving murderers and even three serial killers and would have reason to fear retribution. But when he applied for a concealed-carry permit, his need for a gun was questioned.
“May issue and shall issue is a lot more important distinction than people realize,” Mr. Leddy said. “It certainly is always an issue and will continue to be.”
The justices have the option of granting petitions, known as writs of certiorari, on any or all of the cases; denying them; or taking no action.
But, Mr. Winkler said, “I think the court will have to deal with ’may issue’ sooner rather than later.”
• David Sherfinski can be reached at dsherfinski@washingtontimes.com.
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