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In fight at Supreme Court over NY gun law, a surprising conservative split

The US Supreme Court building at dusk in Washington on Oct. 22, 2021.
The US Supreme Court building at dusk in Washington on Oct. 22, 2021.J. Scott Applewhite/Associated Press

WASHINGTON — When the Supreme Court first declared an individual right to gun ownership more than a decade ago, the court’s conservative majority relied on founding-era legal history to invalidate a D.C. law banning firearm possession in the home.

An even more conservative court is poised to scrutinize on Wednesday the follow-up question left unanswered since 2008: To what extent do Americans have a constitutional right to carry loaded, concealed firearms outside the home and in public places?

Although some observers say it seems likely that the court took the National Rifle Association-backed lawsuit to overturn a century-old New York state law, which is similar to restrictions in seven other states, there is a surprising split among conservative judges and legal analysts that could influence how broadly the justices rule.

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Justice Antonin Scalia’s 2008 decision in District of Columbia v. Heller drew fire from some conservatives who said the court was creating an individual right to gun ownership that it was not clear the Constitution granted. Judge J. Harvie Wilkinson, a Reagan appointee on the US Court of Appeals for the 4th Circuit, fueled the controversy with a law review article calling the Heller majority ‘’guilty of the same sins’' as the Supreme Court that found a right to abortion in Roe v. Wade.

Similarly, a conservative judge on the 9th Circuit recently wrote for the court an opinion that upheld Hawaii’s gun restrictions, pointing to ‘’overwhelming’' historical evidence that there has never been an ‘’unfettered right’' to carry firearms in public. In the New York case, a retired conservative judge joined former officials who served in Republican administrations to write an amicus brief supporting the state, saying the right to carry guns outside the home ‘’has historically been restricted in many public places.’’

Two gun owners who are challenging the law and are represented by former solicitor general Paul D. Clement also assert that historical evidence ‘’overwhelmingly confirms’' that the Second Amendment protects the right to carry firearms outside the home for self-defense and other lawful purposes.

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With both sides claiming a historical upper hand, the case also underscores the limits of relying on the past to review modern laws.

‘’This is not the kind of case where one side has all the history,’’ said D.C. lawyer Roman Martinez, who was a law clerk for Chief Justice John Roberts and for Brett Kavanaugh before Kavanaugh joined the Supreme Court.

Martinez said he expects that the evidence both sides have marshaled will make the case a challenge to resolve.

‘’The strength of New York’s historical counterarguments suggests that this case could actually be one that’s a little harder than we might initially guess,’’ he said during Georgetown University Law School’s preview of the court’s new term, which began this month.

Others cautioned that a majority of the justices may find New York’s law, which requires individuals to obtain a license to be able to carry a gun in public, overly restrictive.

‘’A discretionary regime where it is virtually impossible or at least extremely difficult to get the state’s or the city’s permission . . . is unlikely to survive,’’ Jeffrey B. Wall, a former acting solicitor general during the Trump administration, said during the Georgetown Law preview session.

The case also presents a test for the court’s conservative majority and its commitment to ‘’originalism,’’ the method of interpreting the Constitution as it was originally understood.

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‘’Conservatives, textualists and originalists believe — or should — that the Second Amendment ought not be interpreted to take from the people and their legislatures the historical and traditional authority they have had for centuries to decide where guns may be carried in public,’’ the retired appeals court judge J. Michael Luttig, a nominee of President George H.W. Bush’s, wrote in an email.

‘’Whatever its policy misgivings and temptation, this conservative Supreme Court would be wise to leave these decisions for the people and their elected representatives to make — as the Framers of our Constitution intended.’’

The Supreme Court has turned down numerous requests from gun-rights advocates to get rid of government restrictions on carrying loaded handguns outside the home. The 5-to-4 decision in Heller made clear that the Second Amendment is not unlimited and does not protect a right to ‘’keep and carry any weapon whatsoever in any matter whatsoever for whatever purpose.’’ Scalia’s majority opinion identified several lawful restrictions: bans on possession by felons and the mentally ill; bans in ‘’sensitive places’' such as schools and government buildings; and regulations on the sale of firearms.

But four justices — Samuel Alito, Neil Gorsuch, Clarence Thomas, and Kavanaugh — have bemoaned in recent orders the high court’s reluctance to jump back into the gun debate. In 2017, Thomas and Gorsuch said the court was treating the Second Amendment as a ‘’disfavored right.’’