Pro-gun groups have flooded the federal courts with challenges to various firearms restrictions, expecting the cases will work their way up to the newly constituted 6-3 conservative Supreme Court.
The high court generally has declined to take up major gun cases in recent years, but activists are banking that the recent addition of Justice Amy Coney Barrett will help force the court under Chief Justice John G. Roberts Jr. to weigh in sooner or later.
Alan Gottlieb, the founder of the Second Amendment Foundation, said his group immediately started lining up plaintiffs and crafting a flow chart of cases they wanted to file after President Trump nominated Justice Barrett to fill the vacancy left by the late Justice Ruth Bader Ginsburg.
“Having her on the court, we think we really have six pro-gun votes and while Roberts has obviously been reluctant to hear a case, now I don’t think he has much of a choice,” Mr. Gottlieb said. “I think the court’s going to hear a case.”
Mr. Gottlieb’s group teamed up with Firearms Policy Coalition and other pro-gun groups to challenge laws in states such as Maryland, California, New Jersey, Louisiana and New York. All the suits were launched after Justice Barrett’s nomination in October.
In Maryland, they are challenging the state’s requirements that concealed-carry permit holders demonstrate evidence of recent threats or assaults to obtain a permit.
He said the groups are trying to get as many cases as possible filed before Inauguration Day so they can then turn their focus to combating potential gun-related executive orders from presumed President-elect Joseph R. Biden.
Mr. Biden has talked up the idea of reimposing a ban on military-style, semiautomatic weapons like AR-15s and expanding gun-purchase background checks. It’s unclear how much he’ll be able to do on the firearms front, with Republicans likely to retain control of the Senate.
As vice president, Mr. Biden ran point for the Obama administration’s failed gun-control push after the 2012 Sandy Hook Elementary School shooting.
Several measures, including expanded background checks and an assault weapons ban, failed to overcome a filibuster in a Democratic-led Senate in 2013.
The House has passed some new gun control bills since Democrats retook the majority after the 2018 midterms, but the measures went nowhere in the GOP-led Senate.
The Supreme Court did agree this month to take up a Fourth Amendment search-and-seizure case that involves firearms.
The case turns on a question of whether police violated the constitutional rights of Edward Caniglia after officers took his guns away following an apparent domestic dispute with his wife.
He eventually got his guns back after suing, but still claims that the police violated his Fourth Amendment rights with a home entry and the ensuing seizures.
The Supreme Court also heard a case last year that had challenged New York City’s requirements relating to the transportation of firearms.
The court managed to sidestep the issue, saying in an opinion issued in April that it was moot because the city ended up changing its rules while the case worked its way up from lower courts.
Before that case, it had been almost a decade since the high court took up a major gun rights case.
In 2008, the court ruled 5-4 in District of Columbia v. Heller that individuals have a constitutional right to keep a handgun in the home for self-protection.
In the McDonald v. Chicago case two years later, the court issued a 5-4 ruling declaring that this individual right also could not be violated by the states and their local governments.
Josh Blackman, a professor at the South Texas College of Law Houston, said with Justice Barrett on the court could make another major ruling a matter of when, not if.
“I think Justice Barrett would push the court to take one of these cases,” Mr. Blackman said. “[Justice] Roberts can’t be a wuss any more — he’s going to have to go along.”
Justice Barrett wrote a dissent in one case during her time on the 7th U.S. Circuit Court of Appeals ruling that a man who had been convicted of a nonviolent crime should not lose his Second Amendment rights.
“The original meaning of the Second Amendment … does support the idea that governments are free to keep guns out of the hands of the dangerous,” she said during her confirmation hearings.
Mr. Blackman said, though, that it could take years for a newly filed case to work its way up.
He said the court might be more likely to take up a case that turns on a question of gun rights for the mentally ill or incapacitated, rather than more hot-button issues of constitutional protections for assault weapons or high-capacity magazines.
Mr. Blackman pointed to the Mai v. United States case, which involves a man who was involuntarily committed to a mental hospital when he was 17 years old and whether he should thereby lose his Second Amendment rights.
“I think that might be an attractive vehicle because it’s not trying to give people the right to have AR-15s and give people the right to expanded-capacity magazines — it’s about mental health,” he said.
The 9th U.S. Circuit Court of Appeals denied a rehearing of the case in September, though there were several notable dissents.
“Mai, and all others who have overcome mental illness, deserve better than to be permanently designated second-class citizens, particularly as it relates to their equal participation in a fundamental right,” wrote Judge Lawrence VanDyke.
Philip Van Cleave, president of the Virginia Citizens Defense League, said he hopes the newly constituted court can strong-arm any potential hesitation from Chief Justice Roberts.
“People are saying, ‘finally we have a court that’s going to actually read the Second Amendment as it is,’” Mr. Van Cleave said. “I’m certainly hoping that’s the case. I don’t know if I would say the chief justice is one that I would count on to help with that.”
For their part, gun-control groups had warned that Justice Barrett’s nomination and a 6-3 conservative majority on the court could spell the end for many state-level gun restrictions.
And now they are worried.
“With Amy Coney Barrett’s nomination, every single gun-violence-prevention measure at every level of government is in grave peril because she will join others on that court who believe with her in this radical agenda of striking down those measures,” said Sen. Richard Blumenthal, Connecticut Democrat.
• David Sherfinski can be reached at dsherfinski@washingtontimes.com.
Please read our comment policy before commenting.