If Supreme Court is truly nonpartisan, coming gun law case could make that clear

“Led by conservative justices, U.S. Supreme Court upholds gun restriction.”

That’s not a headline most of us ever expect to read. Yet if the court wishes to make good on several justices’ recent fervent claims of political independence (notably, Justice Amy Coney Barrett’s assurance that the court isn’t “a bunch of partisan hacks…judicial philosophies are not the same as political parties”), the much-anticipated gun law case it will hear Nov. 3 is just the ticket. All that the majority conservative justices need to do to uphold the law is practice conservative judicial jurisprudence.

The case, New York State Rifle & Pistol Association v. Bruen, centers on whether the Second Amendment guarantees the right to carry guns outside the home. The contested New York state law, more than a century old, requires permit-to-carry applicants to show a particular need for self-defense; six states have similar laws.

Lower courts have upheld the law. But now that the high court has a dependable conservative majority, gun-rights advocates are eagerly anticipating that the moment is at hand when the court will fling open the gilded gates to what they might think of as an armed version of paradise. Not only will the court overturn the “draconian” New York law in this spirited vision, but it will issue a sweeping view of Second Amendment primacy, rendering many existing gun regulations moot. State laws that have led to reduced gun violence may be on the line, including background checks and red-flag laws.

Political realities of our time may well affirm gun-rights activists’ optimism, yet parsing conservative jurisprudence suggests a different outcome. A strong case can be made that each of three prominent pillars of conservative judicial philosophy — honoring precedent, originalism, and judicial restraint — argues for upholding gun restrictions like New York’s law.

Honoring precedent (stare decisis) is a long-standing tradition that defers to prior opinions. In 2008, the conservative-leaning Supreme Court established new precedent in Second Amendment interpretation when it ruled, for the first time since the Second Amendment’s ratification in 1791, that the amendment grants individuals the right to own guns unrelated to service in a militia (The District of Columbia v. Heller). Ponder that. It wasn’t until 13 years ago that the right to bear arms was interpreted as an unfettered individual right apart from the need for national security, as referred to in the Second Amendment — “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

While Heller was an expansion of individual gun rights, in writing the majority opinion of the 5-4 decision, Justice Antonin Scalia made clear that a wide range of gun regulation laws remains “presumptively lawful,” adding: “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” This narrow opinion, with all its constraints, is now standing precedent.

Respect for precedent among both conservatives and liberals tends to vary depending on who’s in the majority, and is currently a hot topic of discussion among conservatives. Nevertheless, honoring precedent is traditionally a conservative value and is there for the taking if conservative justices want conservative judicial reasoning not to plow new ground expanding gun rights.

The judicial philosophy of originalism attempts to interpret the Constitution as it was understood when written. It’s reasonable to ask whether, in 2008, avowed originalist Scalia better understood the Second Amendment’s original meaning from a vantage point 217 years after its writing than court decisions rendered throughout history nearer that time. Notably, prior to Heller, the definitive United States v. Miller ruling (1939) that the Second Amendment guarantees no right to keep and bear a firearm that does not have “some reasonable relationship to the preservation or efficiency of a well regulated militia.”

Decades later, reflecting the prevailing respect for this long-standing interpretation as well as originalism, conservative Chief Justice Warren Burger wrote “The Second Amendment of the U.S. Constitution…cannot be understood apart from the purpose, the setting, and the objectives of the draftsmen…The need for a State militia was the predicate of the ‘right’ guarantee, so as to protect the security of the State.”

Rich Cowles

The conservative adherence to judicial restraint rests on the belief that justices appointed for life should properly have a limited view of the judiciary’s role, resisting the urge to tamper with the slow-germinating fruit of the more democratic legislative branch of government. This belief decries “judicial activism,” often referred to as “legislating from the bench,” to enact a political agenda. Or, as the influential conservative Federalist Society puts it, “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”

Will the court’s conservative jurists be able to detach from the politics of gun rights and honor the precedent set by Heller’sunequivocal opinion that government may regulate guns? Might the court’s originalists find that Heller deviated from original meaning and injected a modern-day political concern for individual rights? Could they even revert to an interpretation more in concert with two centuries of understanding of the amendment’s original meaning than that of the past 13 years since Heller, correcting what conservative former Justice John Paul Stevens called “the worst self-inflicted wound in the Court’s history?”

Or will the court set aside these conservative judicial principles and further deviate from long-standing precedent, violating the Federalist Society’s “province and duty of the judiciary,” and expand gun-owning rights? Will it somehow discover new (yet original) meaning in the framers’ words that elevates individual rights over the interests of the state? Will it, in blatant judicial activism fashion, align Second Amendment interpretation with current right-wing politics, further tying state and local governments’ hands in protecting citizens from gun violence?

Informed court watchers seem assured that the only question is how expansively it will rule in favor of gun rights over regulation. But if the court’s conservative justices rule according to conservative judicial tenets, the court could send a signal that laws that protect public safety from America’s permissive gun culture, with its daily collateral of hundreds of victims, are entirely constitutional. For the sake of judicial independence, let’s hope the court doesn’t squander this beckoning opportunity to prove it sticks to judicial philosophy and doesn’t engage in knee-jerk partisan hackery.

Rich Cowles, Eagan, is a retired nonprofit executive who writes for gun safety organizations.