Over the years, cities across the country have restricted who can carry guns in public. The Supreme Court will soon decide whether these restrictions violate the Second Amendment.The effect can be amazing-the difference between the two Hundreds of guns and hundreds of thousands of guns On the streets of Los Angeles, New York City, or Washington.
Since the stakes are so high, commentators will naturally guess the outcome.In view of the court’s conservative majority, many people hope that the court Dramatic Expanding the right to carry firearms Public; in public.
However, quietly—in a rare action taken through the court’s case filing procedure—some conservative judges of the court may have raised their hands. What they revealed was a fact-sensitive approach to the case, which should give gun safety supporters reason to be cautiously optimistic.
Start from point 101 of the Supreme Court. When the party who loses in the lower court wishes to be reviewed by the Supreme Court, it will submit a petition for a “regulation order”. The most important page of the petition is the first page, which sets out the issues raised by the case.As a court Own rule interpretation, “Only the issues raised in the petition, or the issues contained in fairness, will be considered by the court.” Therefore, the “issues raised” determine the scope of the court’s analysis.
Four judges are required to vote in favor of the petition to grant a “certificate”. In almost all approved cases, the judges voted to accept the questions raised in the petition verbatim. (Sometimes, judges will limit their review to one of the multiple questions in the petition, or add a threshold question to clarify the court’s power to hear the case.)
inside Case study The court initially decided to hear the word, and the judges accepted the exact wording of the issues raised in all certificate petitions-all, that is, except for the landmark gun rights case, New York State Rifle and Pistol Association vs. BrunIn this case, they took the important step of rewriting the questions raised, thereby changing the trajectory of the case.
Rewriting a question may seem trivial. It is not.Last semester, in 58 cases, the Supreme Court rewrote the only one. Strikingly, the judge subsequently decided That situation Based entirely on the revised issue, it is believed that the previous decision of the court is not retroactive.The same was true the year I was a court clerk: the justices rewritten Only one problem And began to make a ruling on the case based on new reasons.
In the gun case this semester, revisions seem to be equally important.
Current New York law prohibits individuals from carrying guns in public unless they can prove a “special need” for self-defense. When challenging this law, Original certificate petition This question was asked: “Does the Second Amendment allow the government to prohibit ordinary law-abiding citizens from carrying pistols to defend themselves?”
For gun rights defenders, the answer is obviously no, because all law-abiding citizens should have the right to carry guns in public, regardless of whether they have special needs. If the conservative judge strongly agrees, the petition may be accepted in writing soon.
but it is not the truth.As a court files It appears that the judges discussed the certificate petition for the first time at a private meeting in March, and then again at two other meetings in April. However, in each meeting, the conservative judge failed to provide the four votes required to approve the review. (No liberal judge may vote to approve the case because they almost certainly agree Lower court ruled in support of New York law).
Then, at another meeting held at the end of April, the judges voted to approve the case.
What has changed?The record only tells one thing: the court Rewrite the question, Restricting it to asking “whether the state’s refusal of the petitioner’s application for a concealed self-defense permit violated the Second Amendment.”
The rewritten question first focused the court’s review on the issue of concealed carrying rather than public carrying of the license-this is a wise move because this is the type of license the petitioner originally applied for.
The second change is more important.Instead of asking about rights all Law-abiding citizens carried guns in public, and the court rewritten the question only to focus on the first two petitioners-New York who refused to obtain special needs permits. In the process, the judges made it clear that the specific facts surrounding the application are crucial to their analysis. (Otherwise, the original question asked is sufficient.)
So, what is the specific content of the application? One of the petitioners, Robert Nash, explained in his application that he needed to carry a concealed permit because “A series of recent robberies in the area“In the vicinity of his home, including the robbery on his street a few days before he applied for a license. However, the New York Licensing Agency still rejected his application. In contrast, another petitioner, Brandon · Brandon Koch publicly acknowledged him in the application “Will not face any special or unique danger Into his life. “
By training on the issues raised by these facts, the court hinted at an outcome that should be acceptable to both sides of the gun debate.
State laws that condition the public’s right to self-defense may be constitutional, and Long historical tradition Similar laws. Therefore, New York is free to refuse to issue licenses to applicants who lack special needs like Koch, thereby greatly reducing the number of street guns.But states may not use special needs requirements as de facto prohibitions all Public carry. Doing so would violate the Second Amendment rights of those facing real and special dangers (such as Nash).
The Supreme Court has begun its 2021-22 term Minimum support rate In decades. A fact-sensitive centrist ruling on gun rights will greatly help strengthen its public legitimacy.
Aaron Tang is a professor of law at the University of California, Davis, and the former secretary of Supreme Court Justice Sonia Sotomayor. @AaronTangLaw