When the U.S. Supreme Court hears its first substantive Second Amendment argument in more than a decade, the three Trump-appointed justices will draw intense focus from both sides of the aisle.

Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have offered clues, mainly as lower court judges, to their approaches to weighing the constitutionality of gun regulations, but as justices, they are no longer constrained by their past opinions. And that lack of constraint creates uncertainty for gun rights and gun control advocates.

The court will hear arguments on Nov. 3 in New York State Rifle & Pistol Association v. Bruen. The gun petitioners, which include two New York men, originally asked the justices to decide whether the Second Amendment allows the government to bar citizens from carrying handguns outside the home for self-defense, a broad question whose answer could encompass open as well as concealed carry.

But in granting review, the justices rewrote and narrowed the question to be decided. Instead, the question is whether the state's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

New York prohibits open carry of handguns. It grants concealed-carry licenses to certain categories of employment, such as state court judges, but outside of those categories, a license is granted only "when proper cause exists" for it.

New York notes in its brief that the two men challenging the restriction on concealed-carry licenses actually do have those licenses allowing them carry guns for hunting and target practice, and for self-defense in "off road back country areas." One of the two also has a concealed-carry license for self-defense while traveling to and from work. But, the state says, they don't have unrestricted licenses "because neither demonstrated a non-speculative need to carry a handgun virtually anywhere in public."

Although the answer to the concealed-carry-license question is important, the real battle is, and has been since 2008, over methodology, or what test or approach courts should take when judging whether gun regulations violate the Second Amendment.

"What makes this case so interesting is the newly appointed justices, particularly Kavanaugh and Barrett, who have ruled in dissent (as appellate court judges) where they've leaned in heavily towards the 'history-text-tradition' test as opposed to the two-step, means-end scrutiny that the liberal wing of the court is more comfortable with," Second Amendment scholar Saul Cornell of Fordham University said.

"I'm going to be definitely watching the three new justices—all are on record favoring some version of the originalist model," Cornell, who joined a historians' amicus brief supporting New York, added.

Following the clues

Kavanaugh's clearest clues about his Second Amendment analysis came as a judge on the U.S. Court of Appeals for the D.C. Circuit in a 2011 dissent in what is called Heller II or Heller v. District of Columbia, a sequel to the justices' 2008 landmark ruling. The 2-1 panel upheld the district's ban on semi-automatic rifles and large capacity magazines and most registration requirements.

Referring to the Supreme Court's 2008 decision establishing an individual right to possess handguns for self-defense in the home, Kavanaugh wrote: "In disapproving D.C.'s ban on handguns, in approving a ban on machine guns, and in approving longstanding regulations such as concealed-carry and felon-in-possession laws, Heller established that the scope of the Second Amendment right—and thus the constitutionality of gun bans and regulations—is determined by reference to text, history, and tradition."

The majority disagreed with his test, and like many appellate courts today, applied a two-step analysis: Does the regulation impinge upon the Second Amendment right, and if it does, can the government show that it is substantially related to an important governmental interest—what is called intermediate scrutiny. That test has been criticized by many gun rights groups as heavily weighted in favor of gun regulation.

But the text, history and tradition test could give government "more flexibility and power" to regulate, Kavanaugh said, because "history and tradition show that a variety of gun regulations have co-existed with the Second Amendment right."

Gun control advocates raised concerns about Barrett's nomination to the Supreme Court because of her 2019 dissent in Kanter v. Barr when she sat on the U.S. Court of Appeals for the Seventh Circuit. That case questioned the constitutionality of the federal law prohibiting most convicted felons from possessing firearms for life. The felon challenging the law had been convicted of mail fraud.

Barrett's 37-page dissent relied heavily on history, which she read to show that legislatures could only strip dangerous people of the right to keep and bear arms. "Heller is pretty clear that the scope of the Second Amendment needs to be determined by its history," she wrote. "But neither the convention proposals nor historical practice supports a legislative power to categorically disarm felons because of their status as felons."

Gorsuch, who is perhaps closest to Justice Clarence Thomas in his originalism approach to constitutional analysis, has fewer direct clues to what he might do in the New York case.

In 2017, Gorsuch joined Thomas in dissenting from a denial of review of a California law that generally prohibited the carrying of guns in public for self-defense. The law imposes a "good cause" requirement for issuing concealed-carry licenses. The Ninth Circuit upheld the requirement.

Thomas said the definition of to "bear arms" in the 2008 Heller decision encompasses public carry. "I find it extremely improbable that the framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the  kitchen," Thomas wrote. "The relevant history appears to support this under­standing. The court's decision to deny certiorari in this case re­flects a distressing trend: the treatment of the Second Amendment as a disfavored right."

Gorsuch did not write separately to reveal whether he agreed with all of Thomas' dissent or only some part.