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Gun Lawsuits Flood in After Barrett Supreme Court Confirmation

Activists hope slate of new cases can set landmark Second Amendment precedents

Justice Amy Coney Barrett / Getty Images
• December 7, 2020 5:00 am

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Gun-rights activists have filed a slew of new cases in hopes Justice Amy Coney Barrett's confirmation to the Supreme Court will lead to an expansion of gun protections.

Groups like the Second Amendment Foundation, Firearms Policy Coalition, and National Rifle Association have filed numerous federal cases against restrictive gun laws across the country with the intention of taking as many as possible to the Supreme Court. They hope to not only strike down restrictive laws in places like Massachusetts, California, and New Jersey but also further clarify the reach of the Second Amendment. New rulings, they believe, could change American gun laws forever by forcing judges in lower courts to a formal standard of review in Second Amendment cases.

"We started this process and planning as soon as Trump nominated [Barrett]," Alan Gottlieb, founder of the Second Amendment Foundation, which has already filed half a dozen new cases in recent weeks, told the Washington Free Beacon. "And, of course, as soon as she was confirmed, we started ramping it up to make it happen."

"The lawsuits you're seeing are part of a long-term strategic litigation," Adam Kraut, director of legal strategy for the Firearms Policy Coalition, told the Free Beacon of the group's recent surge in suits. "The confirmation of Justice Barrett, who seemingly would provide a fair analysis, is something that was part of the analysis that went into the timing of it."

The Supreme Court has been reluctant to take on gun-rights cases since striking down local and state gun restrictions in the landmark District of Columbia v. Heller (2008) and McDonald v. Chicago (2010) decisions. Justices have only ruled on one Second Amendment case in the past decade and declined a slate of new suits in June. The confirmation of Barrett, who experts view as friendly toward broadening Second Amendment protections, has given activists hope. The NRA filed Mazahreh v. Grewal on Tuesday to challenge a restrictive New Jersey gun-carry law that allows officials to deny permit applications to the vast majority of residents.

Legal analysts said the strategy of flooding the Court with new lawsuits could pay dividends for gun-rights groups. Adam Winkler, a University of California Los Angeles professor specializing in gun policy and the Supreme Court, said President Trump's appointments throughout the federal bench have created a friendly environment for such cases.

"You can't imagine a more favorable judicial environment than what we have right now," Winkler said. "You have the lower courts that feature a large number of Trump-appointed judges. Many of those judges seem likely to support strong gun rights and weaken gun control. And the Supreme Court's conservative majority has been strengthened. And Amy Coney Barrett, in particular, has taken a strong stand on Second Amendment issues as a lower court judge."

Eric Ruben, an assistant law professor who teaches a Second Amendment seminar at Southern Methodist University, said Barrett replacing liberal justice Ruth Bader Ginsburg unquestionably "shifted [the Court] in a more gun-friendly direction."

"There are plenty of open questions, from the constitutionality of public carry restrictions to large-capacity magazines to prohibitions on gun possession by felons or the mentally ill," Ruben said.

David Bernstein, executive director of the Liberty & Law Center at the Antonin Scalia Law School at George Mason University, told the Free Beacon the new Court majority may feel a responsibility to clear up those questions after such a long delay between major cases.

"Since McDonald, the Supreme Court has studiously avoided clarifying the scope of the individual right to keep and bear arms," Bernstein said in an email. "This led to a fair amount of confusion/inconsistency in the lower courts, but also in some courts basically limiting McDonald and Heller strictly to their facts (i.e., virtually absolute bans on private ownership), which seems to me unjustified."

Bernstein also noted the legal playing field is likely to get less friendly as President-elect Joe Biden takes office. "Biden will soon be picking judges," he said. "So, for a while, they aren't going to have more sympathetic lower federal courts than they have right now."

The Second Amendment Foundation alone has 40 cases in the courts as of Friday. Gottlieb said he wants to present the Court with "a cafeteria plate of cases" to increase the likelihood at least one issue gets through. He and Kraut of the Firearms Policy Coalition both said they want to win each case on the merits but are also hoping to get the Court to establish precedents on the legal standard lower courts should use to examine future gun cases.

Winkler said the ultimate goal for gun-rights groups is "not just to strike down one or two laws but to establish a framework that makes it harder to support gun control." He is skeptical the new raft of cases will end up becoming landmark rulings. He thinks the new Court majority, which is already considering whether to accept one new gun-related case this term, may decide on a Second Amendment case even before the lawsuits filed since Barrett's confirmation have a chance to make their way to the justices.

"I think the Supreme Court is going to issue those landmark rulings before these new cases ever come to Court," Winkler said.