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Supreme Court to Hear Major Second Amendment Case

WASHINGTON — The Supreme Court, which has not issued a major Second Amendment decision in more than a decade, will hear arguments on Wednesday on a New York law that imposes strict limits on carrying guns outside the home.

The question of how the Second Amendment applies to carrying guns in public is an open one. When the Supreme Court established an individual right to own guns in 2008 by a 5-to-4 vote in District of Columbia v. Heller, it addressed only the right to keep firearms in the home for self-defense.

At the same time, it indicated that many kinds of gun regulations are permissible.

“Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,” Justice Antonin Scalia, who died in 2016, wrote for the majority.

The court’s only other Second Amendment case since then, McDonald v. Chicago in 2010, extended the Heller decision, which concerned federal gun laws, to state and local ones.

Since then, lower courts have generally sustained gun control laws. But they are divided on the fundamental question posed by the case from New York: whether states can stop law-abiding citizens from carrying guns outside their homes for self-defense unless they can satisfy the authorities that they have a good reason for doing so.

The question arrives before a court that has grown more conservative since the Heller decision.

While Justice Anthony M. Kennedy was on the court, it turned down countless petitions challenging gun control laws, to the frustration of supporters of gun rights and some justices.

In 2017, Justice Clarence Thomas, joined by Justice Neil M. Gorsuch, wrote that they had detected “a distressing trend: the treatment of the Second Amendment as a disfavored right.”

“For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous,” Justice Thomas wrote. “But the framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense.”

Justice Kennedy’s retirement in 2018 and his replacement by Justice Brett M. Kavanaugh, who wrote in favor of gun rights when he served on a federal appeals court in Washington, seemed to alter the balance of the court. In June 2020, however, the court turned down some 10 appeals in Second Amendment cases.

Since it takes only four votes to grant review, there is good reason to think that the court’s conservative wing, which at the time had five members, was unsure that it could secure Chief Justice John G. Roberts Jr.’s vote.

The court’s conservative majority was bolstered a few months later by the arrival of Justice Amy Coney Barrett. In April, the court agreed to hear the New York case, New York State Rifle & Pistol Association v. Bruen, No. 20-843, and to answer this question: “whether the state’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”

The law was challenged by Robert Nash and Brandon Koch, who were denied licenses to carry handguns at all times. They were authorized to carry them for target practice and hunting away from populated areas, state officials told the Supreme Court, and Mr. Koch was allowed to carry a gun to and from work.

“The state makes it virtually impossible for the ordinary law-abiding citizen to obtain a license,” lawyers for the two men said in court papers.

California, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island have laws similar to the one in New York, according to briefs filed in the case.

Briefs in the case have focused on the history of limits on carrying guns in public, and some conservative lawyers and judges say there is a long tradition of government regulation.

“Our review of more than 700 years of English and American legal history reveals a strong theme: Government has the power to regulate arms in the public square,” Judge Jay S. Bybee, who was appointed by President George W. Bush, wrote for the majority in March when an 11-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, upheld Hawaii’s law by a 7-to-4 vote.

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