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The Trump Court and the Second Amendment


The Supreme Court, as you may have heard, has agreed to take on a Second Amendment case. In itself, the regulation isn’t terribly important, but it may be the first shot of a Court about to get a lot more aggressive in attacking gun control measures:

Since McDonald, the court has been biding its time. But the late Justice Antonin Scalia, who authored the court’s relatively narrow opinion in Heller, and Anthony Kennedy, who may have had a moderating impact on the 5-4 opinions, are no longer on the court. The Roberts court, with Donald Trump’s very conservative nominees Neil Gorsuch and Brett Kavanaugh firmly in place, may be ready to more aggressively expand the Second Amendment, starting with this case.

It is possible, but very unlikely, that the court took the case to uphold the ban and lend its concurrence to a lower court’s judgment in a minor case. The smart money would be that the court took the case so that it could strike down New York City’s regulation. Assuming the court does so, how the court strikes it down matters.

It is possible that the Supreme Court will overturn the Appeals Court and throw out the law with a broad, aggressive opinion establishing a standard of judicial review for gun control laws that would threaten a substantial number of common gun regulations, including many of those that already exist in New York and some of the bills Gov. Andrew Cuomo is expected to soon sign into law, such as a prohibition on school employees carrying guns in schools.This would be a devastating blow in a country in which gun control laws are already far too lax.

But probably the most likely outcome is that the court strikes down the law with a minimalist opinion focusing on the specific facts of the case without necessarily doing much to clarify the scope of the Second Amendment as it might apply to future cases. The regulation under review is unusual, as most regulations apply either to keeping firearms out of the hands of people unfit to carry them or to particularly unsafe weapons, which would not be directly threatened by a narrow ruling applying to the specific facts of this case. This would still be significant as gun right advocates would press more cases and lower courts increasingly filled with young, reactionary judges appointed by Trump would then have more ammunition to push the envelope.

The challenge to New York City’s idiosyncratic gun regulation, then, may ultimately just be a footnote in the ongoing battle over gun control. But it may also be remembered as the case that announced the Supreme Court’s war on states like New York that want to regulate firearms more than the rest of the nation.

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