Supreme Court declines potential major gun rights case, leaving limits intact

The US Supreme Court on Monday declined to take up a potential major gun-rights case testing whether the Second Amendment protects a right to carry handguns for self-defense outside the home.

The justices turned aside without comment a challenge to a New York law that requires residents who want to carry a concealed handgun in public to first demonstrate a need for self-protection beyond that of the general public.

A federal appeals court upheld the law. The high court action on Monday allows that decision and its legal precedent to remain in place in New York and Connecticut.

Five gun owners in New York’s Westchester County filed suit in federal court after they were denied concealed-carry licenses because they were deemed unable to prove to the state they had “proper cause” to carry a concealed handgun.

The gun owners argued that as law-abiding citizens, they enjoyed a constitutional right to carry a handgun for protection and could not be required to demonstrate a special need to the government to obtain permission to exercise the right.

Some saw the case as a potential landmark and as a natural follow-up to the court’s landmark Second Amendment decisions handed down in 2008 and 2010.

Others suggested that in light of the tragic mass killing at Sandy Hook Elementary School and the ongoing debate in Congress over gun-control measures, the justices might decide that the timing was not right to examine such a case.  

In 2008, a five-justice majority declared in District of Columbia v. Heller that the Second Amendment guarantees a fundamental right to keep guns in the home for self-protection. And in 2010, the court ruled 5 to 4 that the amendment applies to all potential gun regulations in the United States, including those enacted by state and local governments.

One of the next big questions is what exactly the majority justices meant when they wrote in the Heller decision that the Second Amendment guarantees an individual right “to possess and carry weapons in case of confrontation.”

Some scholars have concluded that in addition to striking down a Washington, D.C., ban on handguns, the court declared that all Americans enjoy a right to keep guns in their home and to carry guns in public for self-defense.

The Second Amendment speaks of a right to keep and bear arms, not just keep them, they say.

Others dispute this expansive reading of the Second Amendment.

The Westchester, N.Y., gun owners sought to test that view in federal court in New York. They argued that the state could not erect a special requirement to assess a need for self-defense to obtain a conceal-carry permit.

A federal judge disagreed, ruling that Second Amendment rights do not extend beyond the home. The judge also ruled that the state regulation was within the Legislature’s power as a legitimate policy choice.

A panel of the Second Circuit Court of Appeals also upheld the New York regulation. The appeals court rejected the argument that citizens enjoy a “right” to carry a handgun for self-defense.

“There is no right to engage in self-defense with a firearm until the objective circumstances justify the use of deadly force,” the court said.

In urging the high court to take up the case, Alexandria, Va., lawyer Alan Gura said New York was treating the carrying of handguns for self-defense not as a constitutional right but as an administrative privilege.

“It is difficult to imagine federal courts sustaining the denial of the right to speak, the right to worship, or the right to terminate a pregnancy whenever the government asserts that these activities contravene the public interest, and thus may not be conducted absent an extraordinary ‘proper cause,’ ” Mr. Gura wrote in his brief.

“But as this case demonstrates, the Second Amendment is still relegated to uniquely lower status in some courts,” he said.

At its most basic, the issue is whether the Second Amendment protects only the keeping and bearing of firearms within one’s home or whether it applies more generally to a citizen’s seeking to carry a handgun for self-defense.

Three other federal appeals courts are currently considering the constitutionality of similar gun regulations in Illinois, California, and Maryland.

New York Solicitor General Barbara Underwood told the court in her brief that the Second Circuit decision does not conflict with prior opinions of the US Supreme Court, federal appeals courts, or state supreme courts.

Ms. Underwood said the appeals court acknowledged that the Second Amendment applies outside the home, but the judges concluded, nonetheless, that the state restrictions on carrying firearms for protection were justified.

She said that in both of the high court’s prior gun-rights decisions, the justices “made clear that the Second Amendment permits reasonable regulation of firearms.”

Gura said many lower-court judges are enforcing narrow interpretations of the high court’s gun-rights precedents. Some, he said, have been more faithful to Justice Stephen Breyer’s dissenting opinion than to Justice Antonin Scalia’s majority opinion. He said some lower courts are eviscerating the high court’s recent Second Amendment decisions.

“The only thing worse than explicitly refusing to enforce an enumerated constitutional right would be to declare a right ‘fundamental’ while standing aside as lower courts render it worthless,” Gura wrote in his brief.

“Few outcomes could promote as much cynicism about our legal system,” he said.

The case was Kachalsky v. Cacace (12-845).