Less than a month from now, the Supreme Court will hear oral argument in New York State Rifle & Pistol Association v. City of New York, marking the first time in almost a decade that the Court will hear argument on a Second Amendment case. It is fitting, then, that the Federalist Society’s National Lawyers Convention will feature a panel on November 15 on “Originalism, Populism, and the Second Amendment’s Right to Keep and Bear Arms.” There is no better time to have a discussion on the future of the right to keep and bear arms in America.
Since the Court announced its Second Amendment decision in District of Columbia v. Heller (2008), those lower federal courts, which have had the opportunity to address the question, have divided over the extent to which the Amendment includes the right to carry arms outside the home and over the jurisprudential test to apply in evaluating restrictions on the right. The D.C. Circuit, for example, held in Wrenn v. District of Columbia (2017), that the Second Amendment protects the right to carry firearms outside the home and invalidated D.C.’s requirement that ordinary citizens show “good cause” to obtain a permit to carry a handgun. By contrast, the First, Second, Third, and Fourth Circuits have upheld similar restrictions on carrying firearms outside the home, usually without directly resolving whether the Second Amendment includes a right to carry. And whereas many judges—including Justice Kavanaugh when he was on the D.C. Circuit—have endorsed a jurisprudential test based on the text, history, and tradition of the Second Amendment, the courts that have upheld restrictions on the right to carry have generally purported to apply intermediate scrutiny, holding that the challenged laws advanced an important governmental interest via reasonable means.
In NYSRPA, which concerns a New York City law, apparently repealed after certiorari was granted, generally prohibiting the transportation of firearms outside of city limits, the Court may clarify these issues for the lower courts.
The Federalist Society panel will tackle all of these issues and more. The panel will be moderated by Judge Andrew Oldham of the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit has been an important battleground for the meaning of the Second Amendment. For example, in a 2018 dissent from the denial of rehearing en banc in Mance v. Sessions, Judge Jennifer Elrod, joined by Judges Jones, Smith, Willet, Ho, Duncan, and Engelhardt, argued that the jurisprudential approach adopted by Justice Kavanaugh—one based on text, history, and tradition—is the appropriate test for Second Amendment cases. Judge Oldham had not been confirmed in time to participate in Mance, but given how closely divided the Fifth Circuit has been in recent years on Second Amendment questions, he will likely play an important role in future controversies in that Circuit.
The panel consists of:
- Professor Renée Lettow Lerner (George Washington University Law School): Professor Lerner will discuss the history of the Second Amendment and provide background on NYSRPA. Professor Lerner’s remarks will be important in orienting the audience and setting the stage for the rest of the conversation.
- Jonathan Lowy (Chief Counsel & Vice President for Legal at Brady): Mr. Lowy will argue that a proper construction of the Second Amendment allows for broad governmental authority to protect public safety and the exercise of other rights, including the right to live.
- Mark W. Smith (Presidential Scholar and Senior Fellow in Law and Public Policy, The King’s College): Mr. Smith will argue that the text, history, and tradition of the Second Amendment clearly protect the right to carry firearms in public and that, even if some form of intermediate scrutiny applies, restrictions on the right to carry cannot survive.
- Jonathan E. Taylor (Principal, Gupta Wessler PLLC): Mr. Taylor will argue that—even assuming that the proper jurisprudential test is a text, history, and tradition approach—the Second Amendment allows for significant restrictions on the carrying of loaded firearms in populated public places.
It promises to be a robust and informative discussion on a very timely and exciting topic. We hope you will be able to join us on November 15 from 3:00–4:30 p.m., either in-person at the Mayflower Hotel or via live stream on the Federalist Society website.