Justice Alito’s Second Amendment

By Jake Charles.

Earlier this year, Justice Alito dissented from the Supreme Court’s per curiam decision dismissing New York State Rifle & Pistol Association v. City of New York as moot. His dissent in NYSRPA, his opinions in McDonald v. City of Chicago and Caetano v. Massachusetts (which I’ve written about here), and other cases throughout the years give us some insight into how he views Second Amendment cases. They might provide some clues about the types of cases in which he’s likely to vote to grant cert or vote for an expansive interpretation of the right to keep and bear arms.

As a Third Circuit judge, Alito dissented in a case upholding the federal machine gun possession ban against a Commerce Clause and Second Amendment challenge. He would have struck down the ban as exceeding Congress’s Commerce Clause power, much as the Supreme Court had struck down the ban on mere possession of a firearm in a school zone just a year earlier in United States v. Lopez. (In that dissent, Alito did not address the Second Amendment.) He emphasized, though, that Congress could easily draft the provision with a jurisdictional hook and that, in fact, all the jurisdictions within the circuit had banned machine gun possession. The concern, then, was federal government overreach, not the plight of a gun owner or gun rights per se.

As a member of the Supreme Court, Justice Alito joined the majority in Heller and penned the Court’s 2010 incorporation decision in McDonaldIn that latter decision, he underscored that “[s]everal of the Chicago petitioners have been the targets of threats and violence,” including Otis McDonald, the community activist whose “efforts to improve his neighborhood have subjected him to violent threats from drug dealers.” He had little trouble finding the right to keep and bear arms a fundamental enough right to incorporate under the Due Process Clause. And it applied to the states just in the same way it applied to the federal government. In rejecting the City’s argument against incorporation, Justice Alito wrote that it would be inappropriate to treat the right “as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees” incorporated under the Due Process Clause. (Although Justice Alito was referring specifically to incorporation, this passage is regularly cited by advocates and scholars to claim that the Second Amendment itself is being treated as a “second-class right.”) Although this right may have “controversial public safety implications” so too do other rights “impose restrictions on law enforcement and on the prosecution of crimes.” States are limited by the Constitution, but they still have room to devise local solutions for local conditions. “[I]ncorporation does not imperil every law regulating firearms.”

Next, in 2016, came Caetano. There, in a two-page per curiam opinion, the Court vacated a Massachusetts’s high court ruling that held stun guns to be unprotected arms under the Second Amendment. Justice Alito, with whom Justice Thomas joined, concurred but wrote separately to underscore how wrong he found the lower court ruling. “Although the Supreme Judicial Court professed to apply Heller,” Justice Alito wrote, “each step of its analysis defied Heller’s reasoning.” The question, he said, is not whether a type of arm was in common use at the founding, but whether it is in common use today; the question is not whether a type of arm is dangerous or unusual, but whether it is both. The Massachusetts decision thus “pose[d] a grave threat to the fundamental right of self-defense” by turning an empowered domestic violence survivor into a criminal. Individuals can’t be forced by the state to choose a different means of defending themselves. This marked a shift of emphasis from the Third Circuit case, where the gun owner’s own rights and interests were—perhaps because Justice Alito had yet to cast his vote in Heller—nowhere to be seen.

But since then, Justice Alito has not shown much sympathy for those convicted of breaking federal gun laws. He twice agreed to upheld convictions under 922(g)(9)—the ban on possession for those convicted of a domestic violence misdemeanor—by adopting broad readings of the provisions. (In United States v. Castleman, in 2014; and Voisine v. United States in 2016.) He dissented from the Supreme Court’s 2018 decision in Class v. United States holding that Rodney Class could raise a Second Amendment challenge to the law barring firearms on Capitol grounds even though Class had pleaded guilty. Justice Alito thought his unconditional plea waived that argument on appeal and that “the Federal Constitution does not prohibit the waiver of the rights Class asserts.” He joined the dissent in the 2019 decision United States v. Davis that invalidated portions of the § 924(c) sentence enhancement for gun use in a crime. He dissented from the 2019 opinion in Rehaif v. United States that held that the government must prove a prohibited person knew his status to be convicted of unlawful possession. In that latter case, he bemoaned the fact that the Court’s decision “will make it significantly harder to convict persons falling into some of these categories” of prohibited persons and thereby undermine § 922(g)—which, he said, “probably does more to combat gun violence than any other federal law.”

That brings us to NYSRPA—a civil lawsuit challenging New York City’s since repealed restrictions on firearm transport. There, Justice Alito devoted most of his attention to the mootness question. But he also went on to decide—as “not a close question”—that the restriction violated the Second Amendment. The transport law impacted “the same core Second Amendment right, the right to keep a handgun in the home for self-defense” as in Heller because it did not permit the necessary concomitants of that right. And “[o]nce it is recognized that the right at issue is a concomitant of the same right recognized in Heller, it became incumbent on the City to justify the restrictions its rule imposes.” (By recognizing the need for a justification after first finding the right burdened, Justice Alito might be seen as implicitly endorsing the two-part framework used by all the courts of appeals, and thus implicitly rejecting a categorical historical approach.) He went on to say that “[i]f history is not sufficient to show that the New York City ordinance is unconstitutional, any doubt is dispelled by the weakness of the City’s showing that its travel restriction significantly promoted public safety.” He found no evidence to justify the restrictions. He concluded: “We are told that the mode of review in this case is representative of the way Heller has been treated in the lower courts. If that is true, there is cause for concern.”

From these hints, I think it’s not entirely clear that Justice Alito reads the scope of the Second Amendment quite as broadly as some of the other conservative justices. He readily upholds convictions for federal firearm crimes, and—perhaps because of his background as a prosecutor—seems inclined to take law enforcement concerns seriously. And he hasn’t been eager to join Justice Thomas’s repeated dissents from denials of certiorari in Second Amendment cases.

Justice Alito may think lower courts are disrespecting Heller and that the Supreme Court needs to make corrections, but it’s not clear he is eager to wipe away much of the existing regulatory framework and in so doing make law enforcement’s job harder. I suspect this may mean that he is more likely to want to grant cert in a civil appeal (like a challenge to one of the “may issue” regimes now pending) than in a criminal appeal (like an as-applied challenge to one of the federal prohibitors). I suspect he will also have more sympathy for challenges to state laws—like California’s Unsafe Handgun Act—than to federal ones—like the ban on purchasing handguns across state lines. Because Justice Alito appears to be a necessary vote for any expansion of the right to keep and bear arms—and might even be a likely author of any such opinion—his record in firearms cases is worth analyzing, even if it does not provide any conclusive answers about where he will land on the next case.