The Supreme Court looks to the past to create a right-wing future

The Supreme Court looks to the past to create a right-wing future

By Paul Waldman

Columnist

October 29, 2021 at 1:44 p.m. EDT

This coming week, the Supreme Court will hear arguments in a case that could upend America’s gun laws, in essence forcing every state, no matter the preferences of its inhabitants and political leaders, to treat guns the way conservative states do.

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Informed legal analysts will tell you that there’s still some uncertainty in how the court will rule. This is a complicated legal and policy question, and the decision could fall anywhere from maintaining the status quo to creating a national gun free-for-all — and will probably land somewhere in between.

But we’re about to get a lesson in just how different a 6-to-3 conservative majority is from a 5-to-4 conservative majority.

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That may be the best way to understand not only this case but also the most consequential decisions the court will be issuing in the coming years. They’ll be revisiting a series of precedents that were limited in scope by the requirement to maintain those fragile 5-to-4 majorities. The conservatives won some of those cases, and the liberals won others.

But now the question for the court’s conservatives will be: How far do we want to go? And with a majority that has a vote to spare and is far to the right of where it was just a few years ago, they’ll likely be willing to go very far.

The case the court will hear next week concerns a New York state gun law that allows local officials to restrict people’s ability to carry guns wherever they please. The plaintiffs, who have licenses that allow them to use guns for hunting and target practice (and keep them at home), were denied unrestricted licenses because they didn’t show a “special need for self-protection distinguishable from that of the general community.”

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One likely outcome of this case is that the Supreme Court will say the state has no right to make such a restriction. In other words, it could say that states can’t keep the average citizen from carrying their guns with them wherever they go.

The context here begins with D.C. v. Heller, the 2008 decision that struck down an extremely strict District of Columbia law that limited most gun ownership. At the time, Heller was a radical reimagining of the Second Amendment, which the court had never before ruled conferred an individual right to own guns, outside of what the amendment itself calls a “well regulated militia.”

But the key point about Heller now, as an even more conservative court considers the issue, is the way it was limited.

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In 2008, there were five conservatives and four liberals on the court, with centrist Anthony M. Kennedy at the fulcrum. In the decision that Kennedy agreed to, Justice Antonin Scalia wrote:

[N]othing 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.

Because of that, in subsequent years most challenges to local and state gun laws have failed, as Justice Samuel A. Alito Jr. lamented last year. Regulations of things like high-capacity magazines and relatively strict licensing regimes have remained in place.

Heller established a fundamental individual right to keep guns in the home for self-defense. Now, the court is poised to say that self-defense extends almost anywhere — perhaps not to government buildings, but certainly to the park, the supermarket or other public places.

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If they do so, they will surely justify their decision by ransacking the historical record for a few 18th-century quotes to allegedly demonstrate that the result they want is what the Framers had in mind all along. That’s what Scalia did in the Heller decision, but as The Post’s Ann E. Marimow explains, even some conservative legal experts argued that Heller’s reimagining of the meaning of the Second Amendment was unsupported by any fair reading of history and the Constitution.

So what the Constitution actually says could barely be less relevant; the question is what these six justices want.

Or more precisely, how far five of them would be willing to go. The two newest justices, Brett M. Kavanaugh and Amy Coney Barrett, are not only much more conservative than the justices they replaced, but also issued dissents in lower court gun cases that showed they find Heller too restrictive.

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So what we have here is a pattern that is likely to be repeated: What’s on the books today is a 5-to-4 decision from the past limited by the divided nature of the court, in a case such as Planned Parenthood v. Casey (on the right to abortion) or Arizona State Legislature v. Arizona Independent Redistricting Commission (on the constitutionality of commissions created by voter initiative). Those went the liberals’ way when Kennedy joined them, but there are others, like Heller, which the conservatives won but which didn’t go far enough for the court’s most right-wing members.

And now, with a 6-to-3 supermajority, all those decisions can be revisited. The most conservative justices will no longer have to grudgingly go along with anything. They will be able to get pretty much whatever they want.