After Long Gap, Supreme Court Poised to Break Silence on Gun Rights

Eight months later, Justice Brett M. Kavanaugh joined the court, replacing the more moderate Justice Anthony M. Kennedy. And just a few months after that, the court announced that it would hear the case to be argued Monday.

The Heller decision was both revolutionary and modest. It ruled, by a 5-to-4 vote, that the Constitution guarantees an individual right to own guns — in the home, for self-defense. At the same time, it indicated that many kinds of gun regulations are permissible.

Justice Kennedy was in the majority in Heller decision, but he insisted on an important limiting passage, according to a 2018 interview with Justice John Paul Stevens, who wrote the main dissent and died in July.

“Nothing in our opinion,” Justice Antonin Scalia wrote for the majority in the passage that was the price of Justice Kennedy’s fifth vote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

The court’s only other Second Amendment case since then, McDonald v. Chicago in 2010, extended the Heller decision, which concerned federal gun laws, to state and local ones.

Recent scholarship tells a complicated story about how the Heller decision has been applied in the lower courts. A comprehensive study of Second Amendment rulings after the Heller decision through early 2016, published last year in the Duke Law Journal, found that the success rate for challengers was indeed low, at about 9 percent.

But the article concluded that “the low rate of success probably has more to do with the claims being asserted than with judicial hostility.” For instance, challenges by felons charged with possessing guns made up about a quarter of the cases and almost always failed, as the Heller decision itself seemed to require.