Capitol attack could loom over Supreme Court gun case

Experts raise specter of guns in schools, churches, other sensitive places

Gun safety advocates arrive holding letters spelling gun safety in front of the Supreme Court before the start of oral arguments in a different Second Amendment case in 2019. (CQ Roll Call file photo)
Gun safety advocates arrive holding letters spelling gun safety in front of the Supreme Court before the start of oral arguments in a different Second Amendment case in 2019. (CQ Roll Call file photo)
Posted November 2, 2021 at 11:12am

The Supreme Court will have to wrestle with how a major gun rights case could clash with local laws that ban guns from certain places, including at protests in Washington such as Black Lives Matter and the rally before the Jan. 6 attack on the Capitol.

In a case set for oral argument Wednesday, two gun owners ask the justices to rule for the first time that they and other law-abiding citizens have a constitutional right to carry a handgun outside of their home for self-defense.

The duo is challenging a New York gun law that they say makes it almost impossible to demonstrate a special need for self-protection before they can get a license to carry a handgun in public — where “confrontations are most likely to occur.”

While the Supreme Court established a constitutional right to possess a firearm at home for self-defense in a pair of rulings more than a decade ago, the justices since then have not clarified whether that right extends into public spaces.

A group of Democratic members of Congress told the justices in the case that establishing such a right to carry a gun in public for self-defense would make it harder for city and state lawmakers to restrict where guns can be carried to protect public safety, such as laws against out-of-state visitors to Washington having and carrying guns.

“If Washington D.C. had looser restrictions on gun carry by out-of-state residents, the horrifying events of January 6 could have been far worse,” Senate Majority Leader Charles E. Schumer and 156 other Democrats wrote in a brief.

And a number of legal experts, including prominent conservative former federal appeals court Judge J. Michael Luttig, say a Supreme Court ruling along those lines could start decades of cases challenging state or local laws that protect so-called sensitive places, such as schools, churches, bars, airports and polling places.

Washington’s current gun restrictions put a fine point on the issue. If there is a constitutional right to carry a handgun on the street for self-defense, how could Washington ban nonresidents from carrying one when they travel there for a protest? And what reason might the court give for ruling that Washington can ban firearms within 1,000 feet of a demonstration on Washington’s streets if a need for self-defense might be more likely to arise there?

Appellate attorney Richard Bernstein, who filed the brief for the legal experts, said he will “probably live long enough to see a Jan. 6 with armed protesters on the Capitol Mall” if the court adopts a position from the gun owners in the case.

Bernstein at a recent panel discussion pointed to language in the gun owners’ appeal that the right to self-defense extends to “whenever and wherever” the need may arise. “Now, fast-forward to Jan. 6, 2024, 2028, or whatever, or the next Black Lives Matter demonstration,” Bernstein said. “Under the position we are hearing from the other side, they have a constitutional right — both sides, protesters and counterprotesters—to bring guns to protests.”

Local laws and 'sensitive' places

Still, there are solid reasons to expect the justices to seek to limit the potential ramifications to local laws, even if they do decide to expand the scope of the Second Amendment’s protections.

In a landmark 2008 ruling that struck down a law that totally banned handgun possession in Washington, D.C., the Supreme Court went out of its way to say that “nothing in our opinion should be taken to cast doubt” on “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”

Robert Leider, an assistant law professor at George Mason University who filed a brief in the case, said laws that restrict carrying weapons in certain places “will come up quite a lot at oral argument, and I think it’ll be in the back of everyone’s mind” exactly how to address that when the justices write the opinion.

“Even if the petitioners win this case, the opinion will not call into question the vast majority of location restrictions,” Leider said.

The gun owners point out in a brief that they do not challenge any of New York’s laws prohibiting handguns in specific places, only the state’s effort to treat virtually the entire state as a sensitive place where they can’t carry guns for self-defense unless the government decides they have a good reason to do so.

And there are examples of states and cities that do not require licenses to carry concealed handguns in public but still have laws that ban them in sensitive places. That includes Washington, which had its concealed-carry license law struck down by a federal appeals court but did not appeal to the Supreme Court at the time.

Still, the Supreme Court justices will have to weigh how their ruling will shape the legal future around gun rights. New York officials have argued in the case that the gun owners’ argument, carried to its logical conclusion, “would invite a flood of challenges to state and federal laws restricting handgun carrying in sensitive places.”

The legal experts caution in their brief that the court could “open up a Pandora’s box of challenges” to restrictions and have to decide on a case-by-case basis whether a particular location like a bank, church or bar has enough public safety concerns to trump that right.

There are likely to be more unarmed bystanders on a typical urban street at most times of the day than in those locations, the brief argues, and “political violence occurs more often in the streets than in any of the other public locations covered by the restrictions.”

The Democratic members of Congress point to the complexity of gun policy and public safety, such as studies that show that concealed guns increase aggressive behavior, to argue that “the question of how best to regulate guns in public is a fact-bound question of legislative policy, not a constitutional matter for the courts to decide.”