On 16 July 2019, at the age of 99, passed away former Justice of the US Supreme Court John Paul Stevens. Justice Stevens was appointed to the US Supreme Court in 1975 as the only nominee of President Ford. He retired from the bench in 2010. At the time, he was the second-oldest-serving justice in the history after Oliver Wendell Holmes Jr., who was 90 years and 309 days when he retired in 1932.
Justice Stevens, although appointed by a Republican President, by the end of his time at the Court became one of the most liberal Justices. Justice Stevens wrote Majority opinions in landmark cases including Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (forcing Courts to give deference to government agencies’ interpretation of statutes they administer), Gonzales v. Raich, 545 U.S. 1 (2005) (allowing the federal government to prosecute patients using medical marijuana even where such use is legal under state law) and Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) (forcing EPA to regulate greenhouse gases as pollutants). He also voted with the Majority in Grutter v. Bollinger, 539 U.S. 306 (2003) (to uphold affirmative action).
Justice Stevens was in dissent in Texas v. Johnson, 491 U.S. 397 (1989) (voting to uphold a prohibition on flag-burning), United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000) (voting to wider the federal government’s powers under the Interstate Commerce Clause), Van Orden v. Perry, 545 U.S. 677 (2005) (voting to disallow a display of the Ten Commandments on a monument located at the Texas State Capitol in Austin), District of Columbia v. Heller, 554 U.S. 570 (2008) (voting against an individual right to own firearms at home) and Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (voting to allow restrictions on corporate spending on political campaign).
After his retirement from the Supreme Court, Justice Stevens was replaced by Elena Kagan nominated by President Barack Obama.
In August 2018, The Jurist’s Corner speculated that one of the cases to look for in the next US Supreme Court term would be a 2nd Amendment case. On 22 January 2019, the Supreme Court announced that it would hear a case from New York concerning restrictions on transporting firearms outside one’s home (CNBC). The case of New York State Rifle & Pistol Association Inc. v. City of New York, No. 15-638 (2d Cir. 2018) comes 9 years since the Court last considered a 2nd Amendment case and 11 years since the landmark decision in District of Columbia v. Heller, 554 U.S. 570. The Supreme Court will now decide if the New York law preventing gun owners from transporting lawfully owned firearms, except to and from shooting ranges, is compatible with the 2nd Amendment.
So far the Supreme Court’s jurisprudence on the 2nd Amendment is limited to two cases only. In 2008, the Court ruled in District of Columbia v. Heller, 554 U.S. 570 2008 that the 2nd Amendment protected the individual right to possess firearms within the confines of one’s home for the purposes of self-defence. In 2010 the rule was extended in McDonald v. Chicago, 561 U.S. 742 2010 to apply to States as well. However, since then, the Court has taken very few cases concerning the scope of the 2nd Amendment (but see e.g. Caetano v. Massachusetts, 577 U.S. ___ (2016)). This has left at least two big issues largely unresolved. First, what types of firearms are covered by the 2nd Amendment? Secondly, does the 2nd Amendment cover public arena outside of one’s home? Both issues have been hotly litigated over, especially in the so called Blue States. On 24 July 2018 a three-judge panel of the Court of Appeals for the 9th Circuit ruled in the case of Young v State of Hawaii No. 12-17808 that the 2nd Amendment did in fact protect the right to bear arms in public. This is in spite of the 2016 decision of the same Court in Peruta v. County of San Diego, 824 F.3d 919, 939 (2016), which, sitting en banc, upheld a complete ban on carrying any firearms outside one’s home. However, the latter case was distinguished on the grounds that it was concerned with a concealed-carry while the former was concerned with an open-carry. Regardless, the 2nd Amendment jurisprudence of the 9th Circuit stands in open opposition to other Circuits, such as the 7th Circuit which held in 2013 in the case of Moore v Madigan, USDC 11-CV-405-WDS, 11-CV-03134; 7th Cir. 12-1269, 12-1788 that a complete ban on concealed carry was unconstitutional. This situation constitutes a clear example of the so called ‘circuit split’ which creates a pressure on the Supreme Court to resolve the issue rather sooner than later.
However, in 2018, the Supreme Court refused to hear any case that would resolve the circuit split and avoided ruling on the wider issue of the right to carry firearms outside one’s home. Now, it seems, the Court is slowly engaging with this question, although it might take more than just one case to establish some clear principles on the issue. The appointment of Judge Kavanaugh as a new Supreme Court Justice will probably have a considerable impact on this case, and any similar cases in the future, as he has a strong record on the 2nd Amendment (e.g. Heller v. District of Columbia, No. 10–7036. 2011).