The High Court Heard a Critical Second Amendment Case

posted on November 5, 2021

The U.S. Supreme Court just held the argument America has been waiting for—waiting for more than a decade as lower courts repeatedly disagreed on critical Second Amendment jurisprudence. Waited so long, in fact, that Justice Clarence Thomas actually lamented that the Second Amendment was being treated as a “disfavored” right.

The case is New York State Rifle and Pistol Association v. Bruen. The New York State Rifle and Pistol Association is the NRA’s affiliate in the state of New York. The basic question before the court is whether the Second Amendment of the U.S. Bill of Rights protects law-abiding citizens’ right to “bear arms” for self-defense when they step out of their homes, and if so, whether New York can nevertheless make that right subject to a showing of extraordinary need that disqualifies most law-abiding persons.

The Court’s opinion might not come until the end of its term in June 2022, but just having an argument in such an important case was a big step toward a more robust application of the Second Amendment in our courts.

While this case is focused on “may-issue” laws in New York, it could impact America’s other “may-issue” jurisdictions (areas that give licensing officials the discretion to deny citizens the use of this constitutional right for seemingly any reason whatsoever).

During the hearing, Justice Brett Kavanaugh asked Brian H. Fletcher, acting Solicitor General for the U.S. Department of Justice (DOJ) under President Joe Biden (D), if Fletcher thought “may-issue” laws give “too much discretion about exercise of authority.”

Fletcher didn’t think it was a problem that various jurisdictions in New York (and, presumably, elsewhere) can make it all but impossible for people to carry a gun for self-defense. When pushed, he explained that he thought perhaps the Court could ask states to give clearer “guidelines” for the reasons they deny citizens this constitutional right.

The hearing did touch on the fact that New York’s carry laws are an almost-insurmountable bar to residents of, for example, New York City. Openly carrying a handgun in New York is banned and getting a concealed-carry license in New York requires that someone demonstrate they have a “special need” to exercise their Second Amendment rights—even though the Second Amendment was written and ratified as a restriction on government—to the licensing official’s satisfaction. In practice, celebrities, judges and former police officers can sometimes satisfy the “special need” requirement in New York City; ordinary citizens, however, virtually never can.

Former U.S. Solicitor General Paul Clement, the attorney for the plaintiffs in Bruen, began by arguing that a right to “bear arms” naturally includes taking them outside the home. This is something Justice Thomas and Justice Neil Gorsuch agreed with in 2017 when they critiqued the Court’s decision not to take a California case on whether carrying guns outside the home is a constitutionally-protected aspect of this right.

During the hearing, it did briefly come up that, in New York City, merely applying for a concealed-carry license costs about $400, according to a brief from the Black Attorneys of Legal Aid. This brief was especially compelling on this topic; for example, it says, “For our clients, New York’s licensing regime renders the Second Amendment a legal fiction. Worse, virtually all our clients whom New York prosecutes for exercising their Second Amendment right are Black or Hispanic. And that is no accident. New York enacted its firearm licensing requirements to criminalize gun ownership by racial and ethnic minorities. That remains the effect of its enforcement by police and prosecutors today.”

To make this point, Clement declared that the “history is so clear that New York no longer contests that carrying a gun outside the home” is covered by the Second Amendment.

New York’s Solicitor General Barbara D. Underwood argued for the state. At one point, Underwood said she didn’t have an “argument with the Heller” decision. Nevertheless, she thought it perfectly reasonable for state or local licensing authorities to deny residents this constitutional right based on claims for self-defense that were not specifically personal to the applicant. When pushed by various justices, Underwood further explained that local authorities need to be able to ban concealed-carry in populated areas.

This part of the discussion kept coming up. Chief Justice John Roberts, for example, asked, “What could be off limits … could [people] carry on a university campus?”

Others mentioned Yankee Stadium, New York City’s subways and even rural forests.

When asked about one of the petitioners in the case, Underwood said, “[Rob Nash] actually lives near Albany… . [He couldn’t] take [a concealed gun] to the shopping mall or downtown,” but, she said, the plaintiff could carry concealed in New York’s “backcountry areas” (whatever they are).

Much of the discussion focused on what areas can be restricted constitutionally. New York’s attorney thought the government could bar private citizens from carrying in any populated area as well in any “sensitive area.” As those are very subjective notions, various justices kept probing what these off-limits areas might be.

Clement helped by explaining that, like the First Amendment, we begin with the ability to use the constitutional right—as this is a legal right, not a privilege—and then we must do the hard work of deciding as a democratic republic what areas should be off-limits to this basic right.

When they discussed the “special need” requirement New York imposes—Clement repeatedly noted that it is out of keeping with a constitutional right for citizens to have to prove they are “atypical” and so have a special need to use their Second Amendment right to “bear arms.”

Clement also pushed back on questioning implying that it would be dangerous for New York to issue more carry licenses by pointing out that the many large cities in “shall-issue” states don’t see crimes of this nature. “By my count, 7 out of 10 of America’s largest cities are in shall-issue jurisdictions,” said Clement as he pointed out that the facts just don’t support the assertion that citizens who carry concealed are dangerous.

Justice Kavanaugh attempted to narrow the discussion near the end of the hearing by asking Clement: “We don’t have to answer all of the sensitive places questions in this case, is that correct? … The baseline is the right established in the text … the default or baseline is the text.”

“That’s exactly right. Just as it is the First Amendment,” answered Clement.

As is always the case with a U.S. Supreme Court hearing, we can’t be sure how the nine justices in this case will rule, or if this decision will be narrow or expansive. Will the Court use this as an opportunity to strike down “may-issue” restrictions that give local authorities the power to deny anyone they wish their constitutional rights, or will they, and this came up as well, opt to simply remand this case to a lower court for more data?

One line that stuck out from Underwood was: “The problem with the shall-issue regimes is they multiply the number of guns being carried … mistakes will be made, fights will break out … .”

Clearly, Underwood sees guns as a problem. American freedom, to her and Biden, is a problem they want to solve with bans on this constitutionally protected right. Hopefully, a majority of justices on the Court will recognize all Americans have the freedom that citizens in 43 shall-issue states now enjoy.


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