MNGunTalk.com

As we spend fall weekends watching football, one has to wonder – in the big game of constitutional football, will the Supreme Court once again punt the Second Amendment? In the words of Justice Clarence Thomas, the court has treated the Second Amendment as a disfavored right, a “constitutional orphan,” refusing to clarify the standard for assessing Second Amendment claims for over 10 years. Thomas is joined in that concern by Justices Samuel Alito and Neil Gorsuch. However, three votes do not a writ grant make. Justice Brett Kavanaugh, though, has expressed a broad historical view of the Second Amendment. Although vote counts for granting certiorari aren’t public, perhaps his was the necessary fourth vote to grant certiorari in New York State Rifle & Pistol Association v. City of New York.

But is this enough to get a decision by the court defining the contours of the Second Amendment? Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor have expressed the views that use of arms for self-defense does not warrant federal constitutional protection and that Second Amendment rights are not fundamental for incorporation purposes. Justice Elena Kagan appears equally unsympathetic to Second Amendment claims. And, although Chief Justice John Roberts joined the majority opinions in both District of Columbia v. Heller and McDonald v. City of Chicago, he is known as a consensus builder and has long said each case should be decided on the basis of a rule of law that does no more than is necessary to resolve the particular dispute before the court.

So, what other limited issue raised in this case, wholly apart from the Second Amendment, might capture the interest of a majority of the court? Four other constitutional “plays” might get five votes: (1) decide that the case is now moot, (2) determine that New York City’s regulations violate the commerce clause, (3) conclude that its regulations violate the right to travel, or (4) hold that its rule is preempted by the Firearm Owners’ Protection Act.