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Why the next Supreme Court justice is so crucial for gun control

Libby Nelson is Vox's policy editor, leading coverage of how government action and inaction shape American life. Libby has more than a decade of policy journalism experience, including at Inside Higher Ed and Politico. She joined Vox in 2014.

Senate Democrats managed to force the Republican majority to agree to take a vote on gun control after a 15-hour filibuster Wednesday night. But the real future of gun control in America likely rests not with Congress but with the Supreme Court.

At least two cases on gun control, one challenging Maryland's state ban on assault weapons and another arguing that DC’s requirements for issuing concealed carry licenses are too strict, could reach the high court soon. And so these crucial questions, like so many others, depend on the outcome of the presidential election.

President Trump could appoint a firebrand conservative who would pick up where Justice Antonin Scalia left off, crusading to strike down assault weapons bans at the state and local level. President Hillary Clinton could opt for a more liberal nominee with more Second Amendment cases in her past.

Or a Republican defeat could force the Senate to confirm President Obama’s choice, Merrick Garland, whom conservative groups have portrayed as an anti-gun zealot but whose actual record on the issue is scant.

Garland likely supported the DC gun ban. Beyond that, it's hard to tell.

Merrick Garland
Garland mostly avoided Second Amendment cases while on the DC Circuit. The exception is votes on hearing cases en banc, or as a full panel.
Chip Somodevilla/Getty Images

Before President Bill Clinton appointed Garland to the DC Circuit in 1997, Garland had been a prosecutor with no chance to weigh in on Second Amendment cases. Since he joined the court, he’s managed for 19 years to avoid writing an opinion or deciding a case on what the “right to bear arms” means.

So reading the tea leaves on his gun control views requires looking at how he’s voted on whether the full court should review cases decided by a three-judge panel of justices, known as en banc review. The losing side can petition for en banc review before appealing to a higher court, so a vote to rehear is sometimes interpreted as a vote that Garland believed the panel’s decision was wrong.

The most consequential vote Garland cast was for the full court to rehear Parker v. District of Columbia, a case challenging DC’s strict gun laws, passed in 1975, that prevented residents from owning handguns. The three-judge panel had held, by a 2-1 majority, that the DC law was unconstitutional because the Second Amendment protects an individual right to own guns.

Garland voted that the full court should reconsider the panel’s decision, but he lost. DC appealed the case to the Supreme Court, which ruled against the gun control measure in a landmark 2008 case, District of Columbia v. Heller. He also voted against rehearing another DC gun ban case in 2005, Seegars v. Ashcroft, in which a panel had held the ban was constitutional.

Taken together, those two cases suggest that Garland supported the decision and thought that the Second Amendment did not guarantee a right for citizens of DC to own a handgun.

That’s why conservatives who oppose his nomination have seized on his vote in the Parker case, combined with a ruling against the National Rifle Association in 2000 in a case that permitted the federal government to temporarily hold on to the information from gun buyers’ background checks, to suggest that he is a strong opponent of letting individuals own whatever guns they want.

The Judicial Crisis Network, a group that opposes liberal justices on national and state courts, made Garland’s record on guns a feature of its negative ads:

But the truth is those two votes don't give us much of an idea of how Garland thinks about gun control or where he believes the limits on state power to restrict firearms should be. Nor do they give a firm prediction of how he might rule on two important cases the Court could soon consider.

What the Court could decide: Does the right to bear arms include AR-15s?

Maryland was one of the few states to act on gun control after the Sandy Hook mass shootings, banning military-style assault weapons and high-capacity magazines that allow shooters to fire many bullets without having to reload.

The Supreme Court could soon have to decide if that ban is constitutional. Maryland’s law was challenged as infringing on residents’ Second Amendment rights. The Fourth Circuit ruled on the case, Kolbe v. Hogan, in February, in a decision that’s not yet definitive but that doesn’t look good for the ban's supporters.

The last big Second Amendment case at the Supreme Court ended badly for gun control advocates. District of Columbia v. Heller, decided in 2008, held that the federal government couldn’t interfere with a person’s right to keep a gun in the home — establishing that Second Amendment created an individual right to bear arms. (McDonald v. Chicago, in 2010, held that the Heller decision applied to the states as well.)

The Heller decision held that governments could still ban “dangerous and unusual” weapons, such as machine guns. The question is whether AR-15s and high-capacity magazines are both dangerous and unusual.

A three-judge panel from the Fourth Circuit said no, they are not, and sent the case back to a federal trial court to review. By a 2-1 vote, they held that the ban placed a substantial burden on Marylanders’ Second Amendment rights and that the trial court hadn’t been tough enough the first time around. They are requiring the lower court to reconsider the case using “strict scrutiny” — in other words, the trial court must decide if the state government has a compelling reason to ban assault weapons, and if the ban was written as narrowly as possible in order to achieve that goal.

In their opinion, the Fourth Circuit judges said that magazines as well as guns fall under the protection of the Second Amendment, so a challenge to Maryland’s ban on magazines holding more than 10 rounds of ammunition was appropriate.

They also ruled that “dangerous and unusual” means that the banned weapons must be both unusual and dangerous, and that assault rifles (which probably make up between 1 and 2 percent of all guns owned in America, although the percentage may be higher) are common enough not to qualify as unusual. As for dangerous, they pointed out, most murders in America are committed with handguns, not assault weapons.

If the lower court strikes down the ban, the state attorney general wants to appeal to either the full Fourth Circuit, which is dominated by Democratic appointees, or the Supreme Court.

Other federal circuit courts have upheld state and local bans on assault weapons. So a decision by the Fourth Circuit to strike down Maryland’s ban could argue for the Supreme Court to eventually hear the case, since there isn't unanimity among lower courts on what is and is not constitutional.

And do states have to hand out concealed carry permits?

Gun stuck in belt
The District of Columbia has very strict rules for who gets to carry a gun.

The second question the Supreme Court could soon tackle is whether the Second Amendment applies to the right to carry a gun in public in addition to owning one in the home.

After the District of Columbia lost the Heller case, it kept trying to craft a statute that would still bar many residents from carrying guns. To get a license to carry, the district’s final regulation required residents to prove that they live in extraordinary circumstances that require gun ownership — a regulation similar to state laws in Maryland, New Jersey, and New York.

The city offered two ways for would-be concealed gun carriers to get a license:

  1. Applicants can prove they have “good reason” to fear for either their own safety or the safety of their belongings, threats serious enough that carrying a pistol becomes a “reasonable precaution.” People who want a gun must describe any serious threats made against them and disclose whether they've reported those threats to the police. Living or working in a high-crime area, according to DC regulations, is not a good enough reason to need to carry a gun.
  2. Applicants can provide another “proper reason" to need to carry a concealed gun. The application provides two examples: working a job that requires carrying a significant amount of cash or belongings, or needing to protect a family member who has good reason to fear for their safety but is unable to act in their own defense.

Matthew Grace, a DC gun owner, and the Pink Pistols, a LGBTQ gun club founded by libertarians who support both gun rights and gay rights, sued over the regulations. In May, a US district judge ruled that DC should stop denying licenses to applicants who met the other criteria but could not provide a good reason to carry a gun.

The DC Circuit Court of Appeals stayed that order, meaning that the “good reason” regulation will stay in place while the appeals court considers the case.

Depending on its eventual decision, that case could also reach the Supreme Court, which could rule once and for all on whether the Second Amendment enshrines the right to carry a gun in public. How the justices decide that question depends heavily on how the 2016 election turns out, and who ultimately sits in Scalia’s chair.