This case may be officially about concealed handgun laws, but it could have much more significant implications than just concealed handgun laws. Part of the oral arguments dealt with how courts should evaluate Second Amendment cases. For example, should they use strict or intermediate scrutiny? These are different types of so-called “balancing tests.” When the First Amendment says Congress shall pass no law, balancing tests allow the courts to interpret that as saying Congress shall pass no law unless the courts think they have a good reason to. Or should they follow Scalia’s lead in Heller and follow the bright lines laid down in The Bill of Rights. Kavanaugh seemed skeptical of letting the courts use balancing tests. If the Supreme Court adopted a bright-line rule and not a balancing test, that would be a truly significant win for the Second Amendment. Indeed, possibly all of The Bill of Rights.
Justice Kavanaugh: But it’ll be no surprise to you I have concern that that would just be a balancing test that would leave — make it a policy judgement basically for the courts And I don’t know why we would — you say you’d be okay with that, but I’m not sure why we would smuggle all that into here and then it would just be a policy judgment that would be unanchored from historical practice.
Another significant discussion was raised by Chief Justice John Roberts
Roberts asked if you don’t have to justify what you are going to say “when you’re looking for a permit to speak on a street corner . . . why do you have to show in this case, convince somebody, that you’re entitled to exercise your Second Amendment right?” After Brian Fletcher, the principal deputy solicitor general of the United States, saying that people having to prove a “demonstrated need” was consistent with the Second Amendment, Roberts responded: “I’m not sure that’s right. . . . regardless of what the [Constitutional] right is, it would be surprising to have it depend upon a permit system.”
For those interested, a copy of the Amicus brief that the CPRC filed in this case see here.