How low will the Supreme Court go on guns?

There have been few times in the history of the Supreme Court when its doctrinaire logic was more in need of tempering and practical wisdom.

Any day now, the court is poised to decide New York State Rifle & Pistol Association v. Bruen, a challenge to a New York law requiring that people seeking licenses to carry a concealed handgun show “proper cause,” defined as “a special need for self-protection.”

The opinions are probably in their final stages, so this column is an eleventh-hour plea to the justices to pause and consider — in light of the massacres in Uvalde, Tex., and Buffalo, and the nationwide epidemic of gun violence — the consequences of their ruling. The language they use matters enormously, not so much for the pending case but for the scope of what other gun regulations will be deemed permissible.

I’m under no illusion here. The court did not take this case to uphold the New York law. Conservative justices have been itching to further define the contours of the Second Amendment for years. They have one legitimate point — and one scary gripe.

The legitimate point is this: Since the court found in 2008 in District of Columbia v. Heller that the Second Amendment protects an individual’s right to bear arms in self-defense, the lower courts have been left without further guidance about what approach to apply in assessing the constitutionality of gun laws.

The scary gripe is that as the lower courts have coalesced around a standard for reviewing gun regulations, they have focused on the Heller court’s admonition that the Second Amendment “is not unlimited.” As a consequence, lower courts have overwhelmingly rejected challenges to the constitutionality of gun restrictions — leading some conservative justices to bemoan courts’ supposed treatment of the Second Amendment as a “second-class right.”

But the courts — including a number of judges appointed by Republican presidents — were just doing their jobs as set out in Heller. “Nothing in our opinion should be taken to cast doubt on long-standing 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,” Justice Antonin Scalia wrote for the five-justice majority. And, he added in a footnote, “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”

Heller, in my view, was wrongly decided, but this language could leave, in the hands of justices willing to elevate practical wisdom over doctrinaire logic, significant room for reasonable regulation. Then again, this is not the court that decided Heller. The limitations it imposed on gun rights, as Justice John Paul Stevens revealed later, were added at the insistence of Justice Anthony M. Kennedy, the price of his joining the majority.

But today, there are six conservative justices, not five. Kennedy has been replaced by Justice Brett M. Kavanaugh; as an appeals court judge, in a follow-on case to Heller, Kavanaugh wrote a dissenting opinion asserting that the District’s ban on assault weapons violated the Second Amendment because such firearms are in “common use” and were not historically regulated. Likewise, he said, the District’s mandatory gun registration law was unconstitutional “because the vast majority of states have not traditionally required and even now do not require registration of lawfully possessed guns.”

And Justice Amy Coney Barrett, as an appeals court judge, wrote a dissent arguing that a man convicted of felony mail fraud should not have been stripped of his right to have a gun without any indication that he posed a danger — notwithstanding the court’s seeming support in Heller for “long-standing prohibitions on the possession of firearms by felons.”

Where does that leave things? As I said, the New York law, similar to that in six states, is almost certainly going down. The critical question is how. Will the conservative justices use the opportunity to cut back on the kinds of permissible gun regulations outlined in Heller? If so, their timing could not be worse — or the impact more unfortunate.