Supreme Court Takes Up Case On Gun Laws
DON GONYEA, HOST:
We're going to turn now to an important case at the Supreme Court. Tomorrow, the justices will hear arguments in a gun rights case out of New York. And that's a big deal because it's the first time in nearly a decade that the high court will take on the right to bear arms. Here to tell us more is Joseph Blocher. He's a professor at Duke University law school, where he co-directs the Duke Center for Firearms Law.
Welcome, professor Blocher.
JOSEPH BLOCHER: Thank you so much for having me.
GONYEA: Tell us a bit about this case. It involves a New York gun restriction law that's not even on the books anymore. So what's at issue here?
BLOCHER: There's a few things to know. One is that the court could potentially still declare the case moot. They've asked the parties to talk about that issue at oral argument. But the other thing is that this could potentially portend a change in the way that courts going forward evaluate the constitutionality of gun regulations. It's been about 10 years since the Supreme Court's blockbuster decision in District of Columbia v. Heller declared that the Second Amendment protects the private right to possess guns, at least in the home and at least for self-defense.
And we've really over that 10-year span seen a lot of litigation about which kinds of regulations are constitutional and which ones aren't. And courts have agreed on really one central framework for how to ask that question. But especially with the new makeup of the Supreme Court, we might get a new test.
GONYEA: So arguments are slated for tomorrow, and I'm sure we'll get all kinds of analysis about how they went. But what specifically will you be paying extra close attention to?
BLOCHER: Well, I think one thing to pay attention to in addition to this question of mootness is really how the new justices weigh in on the question of the right to keep and bear arms. When Heller was decided, Justice Scalia was still on the court. He wrote the majority opinion for the court. But he was, of course, replaced by Justice Gorsuch. Justice Kennedy has since been replaced by Justice Kavanaugh.
The new justices, Gorsuch and Kavanaugh, have a much more originalist, historicist, traditionalist approach to constitutional interpretation than Justice Kennedy did, so we might see a lot more of a push, of a turn towards what then-Judge Kavanaugh called in a prior decision the test of text, history and tradition. So I'll be looking to see how much of that comes up at the oral arguments.
GONYEA: On this particular case, lots of advocacy groups have filed briefs, and they're on both sides. There's the NRA and March for Our Lives. There are police unions and teacher unions. And there will certainly be lots of demonstrators outside the court tomorrow. Does any of that play in here, really?
BLOCHER: In terms of the justices' decision-making, it's always hard to say. You know, there were lots of briefs filed in the District of Columbia v. Heller case as well. There's certainly examples of cases in which the amicus briefs - that is, the friend of court briefs filed by interest groups - are cited or seem to make a difference to the justices' understandings.
You know, a lot of the things that'll be said in those briefs are things that the justices have seen before and that won't be anything new to them. But some of it will be. You know, the March for Our Lives brief is a really extraordinary document which was not the kind of thing that was before the court in 2008 in the Heller case.
And there, you have young people essentially arguing for, among other things, a chance to have their voices heard in politics when it comes to pushing for gun regulations that a decision from the court might simply take off the books and take out of the sort of democratic process. And to the degree to which that resonates with the justices, I think it could influence at least at the margins what the justices decide.
GONYEA: So, assuming this all goes forward as currently scheduled, a decision would be expected sometime by June. How could a ruling in this case ripple across the country, especially given how many states have passed or are considering new gun regulations, a lot of them in response to tragedy in the mass shootings?
BLOCHER: Well, it really depends which way the Supreme Court wants to go with its decision. So if the court simply says this New York regulation was unconstitutional, then literally nothing changes in the legal landscape because even this regulation, which was unique to begin with, has already been repealed. So that wouldn't change much. That would be the kind of minimalist decision that the justices sometimes say they prefer.
If the court endorses a brand-new method for evaluating the constitutionality of gun laws, then it could potentially call into question the constitutionality of laws like those imposing good cause restrictions on public carrying or, for example, prohibiting or limiting the sales of high-capacity magazines and assault weapons. I don't expect that any decision of the Supreme Court would call into question the range of gun regulations that we have on the books. But any change from the current consensus certainly would have ripple effects across the country.
GONYEA: And what would it take for us to consider this case, this ruling a blockbuster?
BLOCHER: I think endorsement of a new kind of test for evaluating the constitutionality of gun laws. You know, whether there are votes for that, I'm not sure. We'll maybe learn a little bit more at oral argument. But if the court decides to disrupt the consensus in the federal courts that's developed over the past 10 years, that would certainly be a blockbuster in the world of Second Amendment law.
GONYEA: All right. We'll be watching closely. That's Joseph Blocher, professor of law at Duke University and co-director of the Center for Firearms Law.
Thank you, Professor.
BLOCHER: Thank you for having me.
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