Posted on 11/04/2021 9:02:06 AM PDT by Yo-Yo
This post was updated on Nov. 3 at 5:15 p.m.
When Wednesday’s oral argument in New York State Rifle & Pistol Association v. Bruen drew to a close after roughly two hours of debate, it seemed likely that New York’s 108-year-old handgun-licensing law is in jeopardy. But the justices’ eventual ruling might be a narrow one focused on the New York law (and others like it), saving broader questions on the right to carry a gun outside the home for later.
The law requires anyone who wants a license to carry a concealed handgun to show “proper cause” for the license. Courts in New York have defined “proper cause” to require applicants to show a special need to defend themselves, rather than simply wanting to protect themselves or their property.
Representing the challengers in the case, a gun-rights advocacy group and two men whose applications for unrestricted concealed-carry licenses were denied, lawyer Paul Clement told the justices that the text of the Second Amendment enshrines a right to bear arms, and the history and tradition of the United States confirm that the text protects an individual right to carry a gun for self-defense. Carrying a gun outside the home is a fundamental right that people in 43 other states enjoy, Clement observed. And the point of a constitutional right, he stressed, is that you don’t have to satisfy a government official that you have a good reason to exercise it.
The court’s liberal justices pushed back on Clement’s assertion that the history of gun laws and gun rights supported his interpretation, and they questioned whether New York’s scheme was actually as stringent as Clement suggested. Justice Elena Kagan noted that Clement’s brief portrayed the New York scheme as one that denies most people the ability to carry a gun for self-defense. But, she posited, if statistics showed that the state actually grants many of the applications, the court might view the case differently. And at more than one point in the argument, the liberal justices advocated for additional proceedings in the lower court to develop more facts on how many permit applications the state has granted – a move that would, at least for now, stave off a ruling on the merits of the challengers’ claim.
To the extent that the conservative majority pressed Clement, it was largely on the limits of the relief that he was seeking, and in particular what a ruling in his clients’ favor might mean for “sensitive places” like courthouses, schools, and airports. Chief Justice John Roberts asked Clement whether restrictions could be placed on the concealed carry of handguns on university campuses, at football stadiums, or at places where alcohol is served.
Clement responded that a determination would have to be made on a case-by-case basis, considering factors such as whether a particular place is open to the public. That led to one of the lighter moments of the argument, when Kagan followed up with a question about the prospect of restrictions on concealed carry at New York University, telling Clement that “anyone can walk around a campus.”
“NYU,” Clement countered, “doesn’t have much of a campus.”
Justice Brett Kavanaugh stressed that the question before the court was, in his view, limited to the constitutionality of the New York permitting regime. “We don’t have to answer all of the ‘sensitive places’ questions,” he said to Clement.
Clement agreed, noting that although New York has restrictions on “sensitive places,” his clients had not challenged them.
And Kavanaugh seemed to suggest that the constitutionality of the permitting regime could be largely resolved based on the text of the Second Amendment – the right to “bear arms,” without needing to delve too deeply into the historical practice.
Barbara Underwood, the solicitor general of New York, told the justices that for centuries, English and American laws have imposed limits on the carrying of guns in public for the protection of public safety. New York’s law fits well within that tradition of regulating public carry, she argued. Brian Fletcher, the principal deputy solicitor general of the United States, argued in support of New York on behalf of the Biden administration, and he similarly emphasized the history of gun regulations. Fletcher listed various 19th-century state laws that he characterized as analogous to the New York law.
Several of the court’s conservative justices took issue with the state’s rationale for granting unrestricted licenses to carry handguns more often in less densely populated areas, on the ground that disputes are less likely to break out. Roberts was dubious, and he peppered Underwood with questions. The court’s ruling in District of Columbia v. Heller, he pointed out, relied on the right to self-defense. Wouldn’t, he asked, someone have a greater need for self-defense in a higher-density area?
When Underwood responded that New York wanted to protect the right to self-defense but also protect public safety, Roberts pushed back again. He said he can understand a regulation prohibiting guns in a football stadium, but the right to protect oneself would be greater in a high-crime area, he said. “How many muggings take place in the forest?” Roberts asked.
The justices also bridled at what they saw as the substantial discretion that New York gives to local officials to determine whether an applicant has shown “proper cause” to obtain a concealed carry license. Underwood acknowledged that the officials have discretion, but she stressed that the discretion is “not unguided.” Justice Samuel Alito appeared unconvinced, asking Underwood to explain how an applicant can ensure that an official does not consider improper factors in making his decision.
A decision in the case is expected by summer.
This article is also published on SCOTUSblog.
Of course it will be a narrow ruling. Gotta keep those D.C. cocktail party invites coming.
If they don't like it they can amend the Constitution.It's been done before...more than a few times.
All that needs to be changed is change “may issue” to “shall issue”.
And remember....the Bill of Rights came YEARS after the Constitution came into effect.
Many of those State Constitutions carry the right to bear arms for personal protection with reference to a militia as a separate item.
And if you read the 2nd amendment as written, it also stipulates a particular right to bear arms as a person.
Each item in the Bill of Rights pertain to the individual. Reference to the militia was a duty that came along with that individual right to bear arms for personal protection.
More than likely it’ll be a narrow ruling.
BS like this is why I generally eschew politics. You and thousands others can beat your head against a wall for years to restore and expand freedom And the reaction of our “betters” in the political class is to grudgingly dole out additional privileges with a teaspoon. I guess they figure that’s the only way to keep the chumps bowing and scraping and begging for more.
The SCOTUS, in 1857, ruled that citizens had rights to Keep and bear arms wherever they went.
Citizens ONLY!
Are Negros citizens...Dred Scott 1857.
“It would give to persons of the negro race, who are recognized as citizens in any one state of the Union, the right to enter every other state, whenever they pleased.... and it would give them full liberty of speech in public and in private upon all subjects upon which its own citizens might meet; to hold public meetings upon political affairs, and to KEEP AND CARRY ARMS wherever they went.”
Since Negros were not considered citizens at that time, they had no such rights. And the Civil War was on!
In the 1840s Georgia attempted to ban the ownership of handguns.
The GA supreme Court had this to say about that.
19. * Nunn v. State, 1 Ga. (1 Kel.) 243, at 251 (1846).
“’The right of the people to bear arms shall not be infringed.’ The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State.”
“Narrow ruling” because if they rule that the 2nd Amendment applies outside your home, then the Left will send mobs to burn down the conservative justices’ houses. I. AM. NOT. KIDDING.
The Roberts court makes adjustments to law a millimetre at a time.
They will likely make a polite suggestion to the state of NY that their law requires an edit, and that will be as far as it goes.
My meaning of "narrow ruling" is that the Court strikes down "may issue" and mandates "shall issue" to anyone who meets the state's licensing criteria.
This would force the "may issue" states of California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York, and Rhode Island to become "shall issue."
My meaning of "narrow ruling" also means that the Court will not grant nationwide Constitutional Carry, nor will they grant nationwide license reciprocity between the states.
Reciprocity will have to be tried separately under the "full faith and credit" clause, which is not part of this case.
I will also expect to see the states of California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York, and Rhode Island institute much more stringent training requirements including greatly increasing the number of mandatory hours of concealed carry training required, and to greatly increase the licensing fee for applying for a concealed carry permit.
As opposed to nationwide rulings they make that favor liberals.
“unrestricted licenses to carry handguns more often in less densely populated areas, on the ground that disputes are less likely to break out” Talk about racist dog whistle.
Besides, the killer in the Adirondack woods is just as dangerous as the killer on the NYC subway. Are they really goin to base this right on the potential % of getting a crime committed against you?
New York is only one of two States, and one District, which do not issue non-resident carry permits OR recognize other State’s permits.
New York is the ONLY state which arrests and incarcerates (pending finding a lawyer and having a bail hearing) non-residents in defiance of the Federal law making non-stop interstate travel with a firearm a right.
New York’s position is, “yes, there is that law, use it as a defense at your trial”.
My parents have relocated from New York to heaven, so this is no longer a personal concern, but I know of many others who have been affected by the terrible firearms laws and policies in the Empire State.
And try registering a gun from a relatives estate. ugh
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