High court could soon rule against hopes for sane gun control laws | Opinion

June 7, 2022 6:00 am

They fear of the prospect of  broadly sweeping language in The court's upcoming ruling may pave the way for additional successful challenges to gun laws and regulatory measures around the nation, including here in Minnesota. Photo by Getty Images.

Against the backdrop of the latest mass shootings du jour at the supermarket in Buffalo, N.Y., and the elementary school in Uvalde, Texas, the U. S. Supreme Court is poised to issue a ruling that is very likely to constitute another assault on gun regulation.

Although the Supreme Court has not yet issued its ruling in a major Second Amendment case that is to be decided before the justices adjourn soon for their three-month summer recess — good work if you can get it —  it doesn’t take a leak to figure out what’s about to occur.

Sharp-eyed observers and well-tuned listeners, following the remarks from the justices at the high court’s hearing in the matter five months ago, can predict with relative ease the imminent ruling in the case.

If it materializes as expected, the ruling could have substantial impact for the “conceal-carry” law in Minnesota and a number of other states.

A ruling by the Minnesota  Supreme Court last summer upholding the validity of the statutory requirements for obtaining licensure under the state firearm “conceal-carry” permit law could be short-lived if the justices in the nation’s capital do what many court watchers anticipate: Shoot down a comparable law that has been in front of the U.S. Supreme Court since last fall, shortly after the Minnesota case was decided. 

That Minnesota litigation, State v. Hatch, involved a man convicted of a gross misdemeanor for having an unlicensed gun in a backpack in the rear of his truck, which police came across when responding to his stalled vehicle near the MSP airport.

After conviction by a Hennepin County District Court judge of violating the state law requiring a permit to carry a handgun in public, he appealed to the Minnesota Supreme Court, asserting that the conviction violated his  “right to bear arms” under  the Second Amendment to the U. S. Constitution, a provision with no counterpart in the state constitution. The challenge was unanimously rejected by the state high court in a decision authored by Chief Justice Lori Gildea.

Her concise, tightly-written 8-page opinion deemed the permit law a legitimate exercise of  a “compelling governmental interest in ensuring public safety.” 

Gildea further explained that the permit provision was so “narrowly tailored” that licensure was relatively easy to obtain under the “must” issue clause of the law, mandating granting of a gun permit by county sheriffs upon compliance with some limited conditions: At least 21 years of age, citizenship, permanent residency in the country, modest training, and not being ineligible due to prior proscribed offenses or listed by law enforcement as a criminal gang member.

So, the validity of the state gun licensing laws seemed intact.

Parallel proceeding

But, wait, not so fast.

A parallel case challenging  a similar New York law was brought to  the U.S. Supreme Court  in a case initiated by an affiliate of the National Rifle Association (NRA). New York State Rifle & Pistol Association v. Bruen challenges a restrictive state law there requiring licensure for most people maintaining a firearm outside the home for “self-defense” purposes. To obtain one, a gun owner must show “proper cause,” which has been defined by the state courts there as a “special need … distinguishable from that of the general community.”

A pair of  lower federal trial and appellate courts — similar to the Minnesota Supreme Court — upheld the licensing requirement, paving the way for the case to be heard by the justices in the nation’s capital.

Last year the justices passed on ruling on a quirky New York City ordinance barring residents of Gotham from transporting any firearm outside of the city. The justices deemed the case moot and declined to rule on it because the city ordinance was repealed while the lawsuit was in progress.

That abstention — crafted by Chief Justice John Roberts — greatly disappointed Second Amendment advocates, including members of the Court’s conservative wing, who viewed the case as a vehicle for emasculating, if not eliminating,  governmental restrictions on gun ownership or usage. They hoped to buid on  precedents emerging from narrow 5-4 decisions more than a decade ago in District of Columbia v. Heller and McDonald v. City of Chicago, which struck down local gun law restrictions, but expressly left open the prospect of reasonable — albeit limited — legislative limitations on ownership and use of firearms.

Locked and loaded

Second Amendment advocates were ready for the new challenge embodied in the current lawsuit now before the justices.

Although the refusal in 2019 by the court to rule on the unusual New York City ordinance allowed gun control advocates to breathe a temporary sigh of relief, the “proper cause” case now before the court has them gasping with concern about the potentially breathtaking impact of an anticipated adverse ruling.

Gun control proponents have good reason for their unease. The dissenting judges in the prior moot New York City case are likely to return with a vengeance after being rebuffed two years ago in extending Second Amendment rights.

The specter of an adverse ruling on the case heard a few days after Halloween is terrifying to gun control supporters, who feel more threatened than Jamie Lee Curtis on fright night. They fear of the prospect of  broadly sweeping language in the prospective ruling that may pave the way for additional successful challenges to gun laws and regulatory measures around the nation, including here in Minnesota.

Many court watchers say it’s coming, presaged by a telling comment from one of the tribunal’s conservative jurists, Justice Samuel Alito, who lambasted the “proper cause” requirement for a gun permit as placing “ordinary, law-abiding, hard-working people” at the mercy of the criminal element, a view shared by at least one member of the liberal branch.

That outlook may be fatal to the New York gun law. Should that occur — as many pundits predict — the outcome could mortally wound the vitality of the recent Minnesota Hatch ruling in future Second Amendment litigation.

Vagueness vice

Yet, as is often the case, a middle ground exists. The statutory “proper cause” requirement is subject to being shot down as being unduly vague. 

Upholding the premise of gun licensure while striking down this particular “proper cause”  terminology on vagueness grounds could maintain the ability of local and state government bodies to enact and enforce laws requiring gun permits or licenses, while requiring more tightly-defined provisions for the issuance of them.

Navigating through the shoals of the Second Amendment may be taken up by the court’s chief justice, who has demonstrated in the past the desire and ability to formulate compromise rulings that — like most of that genre — please everyone and no one alike.  

It’s worth a shot.

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Marshall H. Tanick
Marshall H. Tanick

Marshall H. Tanick is a Twin Cities employment law attorney with the law firm of Meyer Njus Tanick.