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Much is at stake in one of the most significant cases of the second amendment in US history.
The New York State Rifle & Pistol Association’s Supreme Court ruling against Bruen, expected by mid-2022, could make a New York State restriction on carrying concealed handguns in public places unconstitutional.
Such a ruling in favor of plaintiffs, who include a member of the National Rifle Association, could ease gun regulations in many parts of the country.
From my point of view as a scholar of the second amendment, this case is also noteworthy in that the decision of the court could affect the analysis of the second amendment of all gun laws in the future.
The court will hear oral arguments on November 3rd.
Long in the books
In 1911, New York introduced a handgun licensing system after a surge in murders. In 1913 the permit system was changed to take into account concealed carry.
For more than a century, anyone wishing to carry a concealed handgun for self-defense in the state has had to file a permit application stating that they have a “correct reason” that the law states.
In order to obtain unlimited permission, applicants must prove “a special need for self-protection that can be distinguished from that of the general public”, for example through stalking.
New York lawyers defend this restrictive approach to issuing concealed carry permits as an effective way of reducing gun violence. In 2020 there were 43,592 gun deaths in the United States, including suicides and homicides. In addition, there are over 80,000 non-fatal gun injuries each year.
New York has some of the strictest gun laws in the country, and the homicide rate is below the national average.
Robert Nash and Brandon Koch were denied full concealment permits because a judge found they did not meet the New York Standard for Reasonable Causes.
Instead, Koch was granted a license to carry a concealed handgun for self-defense on the way to and from work. The licenses of both plaintiffs also allow them to carry concealed handguns for hunting and shooting sports as well as for self-defense in areas that are not “publicly frequented”.
Nash and Koch, along with the NRA’s New York subsidiary, claim that these limitations on their ability to carry a concealed handgun violate their right to carry guns. They take a broad view of the right to carry a handgun, one that extends virtually “anywhere, whenever” when the need for self-defense might arise.
New York law contradicts this idea of the second amendment.
The muted effects of the Heller ruling
In considering Bruen, the Supreme Court will focus on the importance of an important precedent: District of Columbia v Heller.
When the Supreme Court passed its Heller ruling in 2008, a 5-4 majority opposed the Washington, DC, ban on handgun possession. The court found for the first time that the Second Amendment protects a person’s right to keep and carry weapons.
In a letter for the majority, the late judge Antonin Scalia stated that the “central component” of the second amendment to the constitution was not a “well-regulated militia” but “the inherent right to self-defense”.
But the majority decision contained cautionary language that lower court judges have since relied on to uphold gun laws.
“The right guaranteed by the second amendment is not unlimited” and “no right to keep and carry a weapon in any way or for any purpose,” wrote Scalia. His statement even included a list of “presumably lawful regulatory measures,” such as restrictions on the possession of firearms by criminals or prohibitions on taking them into sensitive locations such as schools and government buildings.
The NRA and other gun rights advocates were reluctant to have judges generally approve the constitutionality of laws restricting the use of firearms.
This dissatisfaction culminated in bruises.
More and more states allow concealed handguns
In 1980, most Americans lived in places that either prohibited concealment or had a New York regime for “right reasons.” An NRA push that began in the late 1980s relaxed public transportation laws across the country.
In states where gun rights advocates have relatively little influence, gun rights advocates hope that Bruen will achieve what they failed in the political process in court.
Today New York is one of eight states that require people who wish to carry hidden handguns have a “right” or “good” cause. California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island have similar laws.
If the court overturns New York law, Americans in these states could expect an increase in the number of people legally carrying handguns in their communities. If you want to carry a concealed handgun, it is easier.
A “text, history and tradition test”
Bruen could also be a turning point in how judges assess all cases in the second amendment to the constitution – whether it is assault weapons, tasers or crimes in the possession of felons.
So far, judges have generally assessed whether such restrictions are warranted by current public safety concerns.
Many gun rights advocates are calling on the Supreme Court to reject this approach. Instead, they want judges to rule cases based solely on history and tradition, unless the judiciary’s interpretation of the text of the second amendment solves the problem. This is known as the Text, History and Tradition test.
Judge Brett Kavanaugh is credited with first formulating this test in a dissent that he published prior to his rise to the Supreme Court.
Judges Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett all have to some extent adopted similar legal philosophies.
But there’s a catch: guns have always been regulated in America.
New York’s regulation has been on the books for over a century and has a legacy that goes back even further.
If the judges abandon a conventional approach to text, history and tradition testing, I would expect another round of lawsuits over gun laws that have weathered previous legal challenges. Gun rights advocates would likely sue, for example, restrictions on large capacity magazines or requirements for safe storage in places where these issues have already been resolved.
This legal battle would ask judges to rule on the sole basis of a difficult historical exercise: comparing modern laws dealing with modern weapons and contemporary gun violence with the laws, practices and weapons of a bygone era.
Trump’s judges could make the difference
The dish has three main options.
It could uphold New York law. It might knock it down. Or it could find a middle ground, e.g. B. To make a tight decision that raises big questions about gun restrictions.
Chief Justice John Roberts has previously led his colleagues to narrow judgments. But he will have little leverage if the three judges appointed by former President Donald Trump join forces with Samuel Alito and Clarence Thomas, the court’s other two conservatives, on a far-reaching majority opinion.
Trump consulted with the NRA before nominating Gorsuch, Kavanaugh and Coney Barrett – all of whom received the gun group’s blessing.
The verdict will underscore the importance of their presence in court.
Eric Ruben is Assistant Professor of Law at Southern Methodist University in Dallas and a Fellow at the Brennan Center for Justice at New York University School of Law. This was first published by The Conversation – “The First Major Second Supreme Court Amendment Case in Over a Decade Could Overturn Guns Restrictions”.