Mass. Gun Laws Challenge Could Become A Second Amendment SCOTUS Blockbuster

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The Supreme Court in Washington. (Patrick Semansky/AP)
The Supreme Court in Washington. (Patrick Semansky/AP)

The Bay State has become the new hub of the legal battle over gun rights.

It's been a decade since the U.S. Supreme Court has made a major ruling on the second amendment. But a pair of challenges to Massachusetts gun control laws could soon give the justices a chance to make another major Second amendment ruling.

“No doubt that Massachusetts is a Second Amendment hot spot,” said Adam Winkler, a gun policy expert and professor at UCLA School of Law.

Winkler said there's been an uptick in challenges to state gun laws since the court’s 2008 ruling in District of Columbia vs. Heller, which held that individuals have a right to keep a handgun in the home for personal protection.

But that 5-4 ruling, which broke along the court’s ideological lines, didn’t specify how far that individual right goes, including whether it extends outside the home, or includes the right to own weapons other than handguns.

There’s clearly a number of justices on the court who want to see the court clarify the scope of the Second Amendment.

Adam Winkler

Despite challenges from gun rights groups, the justices have been reluctant to say more. Legal experts believe that’s a sign former Justice Anthony Kennedy, who voted with the majority in Heller, was wary of going much further.

But that changed after Kennedy’s retirement, and the arrival of his replacement, Justice Brett Kavanaugh. This term, the court took up a challenge to a New York law restricting the right to carry. That case was dropped after the law was repealed, but Kavanaugh wrote in a concurring opinion that “the Court should address that issue soon.”

Winkler called that a clear sea change.

“There’s clearly a number of justices on the court who want to see the court clarify the scope of the Second Amendment,” Winkler said.

The challenge to Massachusetts’ public carry law has a good chance of being that case. The law allows local authorities to make applicants demonstrate that they have “good reason” to fear for their safety or property before a license is granted. Lower appellate courts have split over whether such laws are constitutional.

Joyce Lee Malcolm, a law professor at Antonin Scalia Law School in Virginia who has argued on behalf of gun rights advocates in Heller and other cases, said the law gives local licensing authorities too much leeway to decide if a “good reason” is good enough.

“If it’s that arbitrary, that it can depend on the individual administrator to just decide that he is never giving anybody that right, that’s not really fair,” Malcolm said.

Likewise, Malcolm said Massachusetts' assault rifle and ammunition ban, based on the former federal assault weapons ban that expired in 2004, is also ripe for the court to consider, because — like in other similar state laws — the definition of what qualifies as an assault weapon is so vague.

“It automatically makes the millions of people (across the country) who have these weapons felons for owning them,” Malcolm said. “They bought them legally, and then suddenly, because some people find them scary, they’re illegal.”

Eric Tirschwell, managing director of litigation and national enforcement policy for the advocacy group Everytown for Gun Safety, said the Massachusetts laws are both constitutional and effective.

“Massachusetts is among a number of states that has some of the strongest gun safety laws in the country,” Tirschwell said. “So it’s not surprising that there are legal challenges to some of those laws. I’d also note that Massachusetts also has one the lowest gun homicide rates in the country. And certainly, from our perspective, that’s not a coincidence. It’s very much related to the strength of its gun safety laws.”

If the Supreme Court takes up either or both cases, it will decide them during the next term, which begins in October.

This segment aired on May 15, 2020.


Kimberly Atkins Stohr Guest Host, On Point
Kimberly Atkins is a senior opinion writer and columnist for Boston Globe Opinion. She's also a frequent guest host for On Point. She formerly was a senior news correspondent for WBUR.



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