UPDATED Thursday 7:10 p.m.  This post has been modified to clarify the specifics of the Texas law at issue in No. 13-390 as to the class of individuals excluded from the rights at issue.

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The next chance for the Supreme Court to take up the most important unanswered issue about the Second Amendment — whether gun rights exist outside the home — will come later this month, according to scheduling shown Wednesday on the Court’s electronic docket.

The Justices at their private Conference on February 21 will be examining two cases filed by the National Rifle Association, raising basic questions about the power of Congress and state and local governments to pass gun control laws.  In different ways, each of those petitions seeks to draw the Court’s attention to the lingering issue of gun rights in public places.  The cases are NRA v. Bureau of Alcohol, Tobacco and Firearms (13-137) and NRA v. McCraw (13-390).

So far, the Court has answered two fundamental questions about the Second Amendment: in 2008, in District of Columbia v. Heller, it ruled that the amendment protects a personal right to have a gun, at least for self-defense inside one’s home, and in 2010, in McDonald v. City of Chicago, it ruled that the amendment applies so as to restrict gun control laws at the state and local levels, as well as at the federal level.

Since then, the Court has repeatedly turned down new cases seeking to broaden the personal right to have a gun, with most of those dealing with pleas to extend the right to public settings.  The Court, as usual, has given no explanation for remaining on the sidelines in those cases.

Both of the new cases deal with laws — a federal law in 13-137, a Texas law in 13-390 — that restrict access to handguns for young adults eighteen, nineteen, and twenty years old.   In separate rulings, the U.S. Court of Appeals for the Fifth Circuit upheld both laws at issue, and in the process raised serious doubts about whether the Second Amendment even applies to gun rights claims of those who are under the age of twenty-one but still regarded as adults.  But the two NRA petitions take different approaches to the issue of gun rights in public places.

The petition in the federal case is a sweeping claim that lower federal courts have been engaging in “massive resistance” to the Court’s landmark decisions on Second Amendment rights.  As one example of that resistance, the petition contends that lower courts are stubbornly resisting efforts to view the personal right to have a gun as something so important that it must extend outside the home as well as within.

The petition makes that point in urging the Court to make it clear to lower courts that its 2008 decision recognized a fundamental right, one that can be curbed only for the most compelling government reasons. The government has countered that the beyond-the-home question is not even at issue in that case, because the federal law involved is a narrowly focused issue on minors’ desire to buy guns from licensed federal dealers.

The petition in the state case, however, is a straightforward plea to extend the Second Amendment beyond the home, because it involves a state law that bars almost all youths ages eighteen through twenty from carrying a handgun in public.  Texas requires a license to carry a gun in public, but those in that age group are not eligible to get such a license.  The petition in that case said that the Supreme Court in 2008 settled that the “right to keep arms” applies within the home, so now, it argued, it is time for the Court to decide whether the “right to bear arms” means the right to carry them when one leaves home.

The Court has been holding both of the NRA cases until each was ready for consideration.   The Court apparently has also been holding another case, to examine it along with the NRA cases.  That is the petition in Lane v. Holder (12-1401), which is a test of whether gun purchasers have a right to sue to challenge federal gun laws that restrict their option of buying guns from dealers in a different state.  That case, too, is now set for the February 21 Conference, according to the docket.

The Court has the option, if it is going to grant review of any of the cases, of taking on the broader issues of gun rights outside the home, or gun rights for young adults, or of examining only the narrow question of who has a legal right to go to court to challenge gun control laws.

The Court may announce as early as February 24 whether it is going to hear any of these cases.

Posted in National Rifle Association of America v. McCraw, Everything Else

Recommended Citation: Lyle Denniston, Gun rights cases on the schedule (UPDATED), SCOTUSblog (Feb. 5, 2014, 8:12 PM), http://www.scotusblog.com/2014/02/gun-rights-cases-on-the-schedule/