This Monday, the Supreme Court is scheduled to hear what could be one of the most important Second Amendment cases in a decade.
Gun rights supporters eagerly anticipate the matter going before the now-conservative leaning Supreme Court, which could make a decision that puts an end to gun control measures like the so-called assault weapons bans. But before we get too far ahead of ourselves, there is one potential problem with the case.
A new era
The last significant gun rights case heard by the Supreme Court was McDonald v. Chicago in 2010, which made the 2008 ruling of D.C. v. Heller applicable to the states — a decision in which the justices held that the Second Amendment protects gun ownership even when the owner does not serve in a militia.
More important is what has happened in the meantime. Since 2010, lower courts have treated Second Amendment cases like First Amendment cases, using a balancing test to determine whether a compelling public safety reason exists to restrict the right to bear arms.
This balancing test has given gun control advocates some hope, as it has allowed them to make public safety arguments to support gun control legislation. But, much to their dismay, this test would have a hard time surviving scrutiny of the Supreme Court as it is presently composed.
The current court includes Justice Brett Kavanaugh, its newest member, who has already made his view on the matter known in a dissent from 2011. “Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny,” he wrote.
There is no doubt that Justice Neil Gorsuch, who adheres to a judicial philosophy similar to the late Antonin Scalia, would agree with Kavanaugh on this one. He would be likely to look at how the Second Amendment would have been understood by citizens in the 18th century, and they, of course, would have seen any attempt to disarm them as a violation of a very important right.
Add in the opinions of Justices Clarence Thomas, John Roberts, and Samuel Alito, and it is understandable why gun control advocates are worried.
A potential snag
These activists, however, may have a way out — they may actually be able to get the case thrown out for mootness.
The matter made its way into the courts after a group of New York City gun owners along with the New York State Rifle & Pistol Association, challenged a New York City regulation that barred the transportation of handguns outside of the home. Recognizing, however, that this case could make it up to the conservative Supreme Court where it might be used to weaken gun control measures across America, New York repealed the law.
Accordingly, on Monday, the justices will determine whether the case ought to go on even though the regulation that triggered it is no longer exists. Those who brought the case argue that the matter should still be heard, because New York could still penalize them for past violations.
For now, we will have to wait to see if the case survives this mootness challenge. But, if it does, it could have a major impact on gun laws across the country.
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