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Where The Supreme Court Stands On Gun Laws


After the deadly shooting at a high school in Parkland, Fla., many Americans are calling for action on guns. But Congress says it won't take up gun legislation in the near future. Enter the Supreme Court. The court could, by default, be the answer to setting national parameters on complex issues like who gets access to guns and how. But the court hasn't addressed that many gun-related cases in recent years. So where does it stand on gun control? We brought in NPR legal affairs correspondent Nina Totenberg to talk about that.

NINA TOTENBERG, BYLINE: Nice to see you.

MONTAGNE: Nice to see you. Now let's start with, when was the last time the court issued a major ruling on guns?

TOTENBERG: Well, you know, it's kind of interesting. For most of American history, the legal consensus was that the right to bear arms was not an individual right but a right for the militia, those called up for military service. In fact, I remember Chief Justice Burger, who was a conservative chief justice, saying that the idea that there was an individual right was really ridiculous. But that changed with some scholarly work and pressure and cases brought by gun rights advocates. And in 2008, in the Heller decision, the court said that there is an individual constitutional right to have a handgun in one's home for self-protection. And two years later, in a second case, the court made clear that its decision applied to the states as well as the federal government.

MONTAGNE: With all the talk of guns lately, Nina, you do have one side calling for more restrictions. You have another taking a hard line. But what is the court saying? Is there an absolute right to bear arms in this country or not?

TOTENBERG: No, there isn't. The court is saying that there's an individual right to bear arms, made clear that there are limitations on that right, just as there are limitations on other constitutional rights. You have a First Amendment right to free speech, but you can't yell fire in a crowded theater. You can't even parade loudly through a residential area at 2 in the morning. Similarly here, the court said in 2008 that the right to bear arms does not mean that the government can't ban firearms for felons, for the mentally ill. It doesn't mean you can't ban guns in sensitive places, like schools and government buildings. And it doesn't mean that there can't be conditions and qualifications for the commercial sale of firearms. And in addition, the court also seemed to say that particularly dangerous and unusual weapons could be prohibited, like military assault-style weapons.

MONTAGNE: Well, you know, is there a view, then, of the Second Amendment that might make the court more prone to leave this particular issue up to the states?

TOTENBERG: Not really, necessarily. I think we have to assume one of two things from this continued refusal to act - that the court believes it laid down guidelines in 2008 in the Heller decision and would just as soon stay out of this. Or more likely that neither side, those justices who support strict gun regulation laws or those who oppose them - neither side is sure that they have the votes to prevail if the court were to take up those issues. After all, Heller was 5 to 4 with Justice Kennedy casting the deciding vote. And it's possible also that there are some justices, especially in light of current circumstances, who have evolving views on all of this.

MONTAGNE: We are coming up on the first anniversary of Neil Gorsuch's term on the court, President Trump's appointee. What might his presence on the court mean on this issue?

TOTENBERG: Well, I think we've seen a few hints that he is certainly one of the staunch advocates for gun rights. And where he would draw the line is not entirely clear, but he did dissent with Justice Thomas in at least one of these cases that the court declined to hear. It takes only four votes to grant a case. It doesn't take a majority of the court to hear a case. And there haven't been four votes to do that.

MONTAGNE: NPR legal affairs correspondent Nina Totenberg, nice to have you.

TOTENBERG: Nice to be here. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.