When I attended law school, the general consensus of legal scholars and the controlling cases held that the Second Amendment protected a “collective” right rather than an individual right.  However, around that time, a movement was starting among conservative interest groups (with some support from conservative scholars) to push the idea that there was an individual aspect to the Second Amendment.  The historical argument on this issue is murky due, in large part, to the way that cases were decided pre-1800.  About a decade ago, conservatives prevailed (by a 5-4 vote) in having the Supreme Court hold that individuals did have some rights under the Second Amendment and that those rights were “incorporated” against the states by the Fourteenth Amendment.  However, to get to five votes, the Supreme Court left unaddressed much of the details about the nature of the right protected by the Second Amendment.

Since the Supreme Court issued its two opinions, lower courts have been handling challenges to individual laws restricting the ability to purchase firearms — some involving the type of gun, some involving who can purchase firearms, and some involving other details.  The decisions in these cases have been somewhat narrower than pro-gun activists would like.  They have been hoping to get a case to the Supreme Court so that the Supreme Court could establish the legal test that will be applied in Second Amendment cases.  Earlier this year, conservatives thought that they had found the perfect test case.

Last January, the Supreme Court granted review in New York Rifle and Pistol Association vs. New York, NY.  The case involves a challenge to a New York city ordinance that is very restrictive on where gunowners can take their guns.  (Basically, New York State has two types of permits for gun ownership — one only covers general ownership — sometimes referred to as a target license and sometimes referred to as a premises license — and the other permits carrying a weapon — a carry license.  The New York City ordinance provided that people who only have the general permit can only take their gun out of their in-city home to go to an in-city gun range and could not take them to a second home outside the city or to an out-of-city gun range.)  Seeing the writing on the wall, New York State passed a new gun law that essentially invalidated the New York City ordinance and New York City repealed its ordinance and passed a new one that was significantly less restrictive. Continue Reading...