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Thursday, March 28, 2024 | Back issues
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Justices barreling into gun rights standoff have little precedent to guide them

The Supreme Court is set to hear arguments about New York's rigorous standards for approving licenses to carry a concealed weapon amount to a de facto ban. 

WASHINGTON (CN) — Over a decade since it last waded into the issue, the conservative-majority Supreme Court is set to hear arguments Wednesday in a case that Second Amendment rights activists hope will open up restrictive gun laws across the country. 

The case pitting gun owners against New York permitting authorities turns on how the Second Amendment’s phrasing of “to keep and bear arms” is applied to carrying guns in public. Because existing precedent so far has only affirmed the right to keep guns in the home, there is no precedent for how those rights are applied outside the home. Led by Robert Nash, Brandon Koch and the New York State Rifle and Pistol Association, this case looks to define those rights. 

New York, for the last century, has held gun owners applying for a concealed-carry permit to the "proper cause" requirements of the state's Sullivan Law. Nash and Koch both asserted that they wanted to carry a concealed weapon for self-defense, and sued when the state said they could not meet this hurdle. A federal judge backed the state law as constitutional, however, and the Second Circuit affirmed, bringing them to the Supreme Court's doors. 

In the opening brief, the gun owners and their advocates argue that confining Second Amendment rights to the home “would defy both its text and common sense.” 

“Those words would serve no purpose at all, which would violate the cardinal principle of constitutional interpretation,” the group wrote in their opening brief. “Their purpose and meaning is clear; the reference to bearing arms secures the pre-existing, fundamental right to ‘carry weapons in case of confrontation.’”

Asserting that New York’s law is “wholly antithetical” to Second Amendment rights, the challengers averred that “any faithful reading of text, history, tradition, and precedent forecloses New York’s attempt to prohibit petitioners from carrying handguns for self-defense just because the state is not convinced that they really need to exercise that fundamental right."

New York Attorney General Letitia James has shot back, meanwhile, that the Second Amendment, like all constitutional rights, is not unlimited. 

“The scope of the Second Amendment right to bear arms thus cannot be deduced from the proposition, not disputed here, that it entails an individual right to carry arms for self-defense beyond the home,” James wrote in her brief. “History and tradition play a crucial role in defining the scope of that right. And they conclusively confirm the validity of New York’s handgun-licensing law.” 

James argues there have always been restrictions on where guns were allowed to be carried particularly in populated areas. She points out that even early Americans were restricted by local officials who could imprison anyone who carried firearms. 

“It does not follow," the state's brief continues, "that early Americans had an unfettered right to carry firearms in virtually any public place on the speculation that a confrontation might occur at a moment’s notice. … Anecdotes about founding fathers carrying guns and supporting ‘the right to do so’ cannot overcome these clear historical limitations.” 

The case has garnered loads of attention from Second Amendment advocates and anti-gun groups alike with both sides together filing almost 90 amicus briefs before the court. The enhanced interest from everyone from the NRA to the March For Our Lives Action Fund underscores the implications the court’s decision could have. 

Eric Tirschwell, executive director of Everytown Law, said in a phone call that the decision from the court could jeopardize the gun laws of many other states, not just New York. 

“A really important principle in this case that we hope the court will reaffirm is that that choice really should be up to the elected representatives to decide whether they believe that protecting their constituents and the people who live in their jurisdiction is advanced by more guns in public or fewer guns in public,” Tirschwell said. 

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He continued, “if that law is upheld, that means similar laws in about a half dozen other states should be upheld as well, and vice versa, obviously, if the New York was struck down.” 

Gun-safety advocates argue that more guns on the streets means more gun violence. 

“If there's one thing that the last year and a half of gun violence has shown us it's that we don't want or need more people walking around in public with guns, especially in our cities,” Tirschwell said. “From a public safety perspective, all of the credible social science tells us that if there are more people carrying more weapons in public there's going to be more gun violence.”

Gun rights advocates argue their constitutional rights are being infringed. Erik Jaffe, an attorney for Schaerr Jaffe who represents the Firearms Policy Coalition, which submitted a brief in this case, said people treat Second Amendment rights differently because they are afraid of guns. 

“Let's ask the question, are they being consistent in how they apply constitutional principles to that right,” Jaffe said in a phone call. “I understand they don’t like the right and I understand people are terrified of guns, I get that. … People are terrified of all kinds of things, yet if it were speech, we would never, never let courts get away with what they've gotten away with in New York and California.” 

Yet another brief in the case was filed by Texas Senator Ted Cruz and 24 fellow Republicans including Minority Leader Mitch McConnell, who take an originalist view that individuals should be able to carry guns in public because the framers of the constitution said so. 

“The inclusion of an individual right in the Constitution reflects the Framers’ determination not only that the benefits of guaranteeing that right outweigh the costs, but that no future legislature— including Congress—should have the ability to second-guess that determination,” their brief states. 

The senators’ brief argues the framers understood the gun violence risks posed by the carrying of guns and decided to allow it anyway so the court should follow that precedent despite arguments that allowing more guns on the streets leads to more gun violence. They argue that the benefits outweigh these risks. 

“In short, the Framers and ratifiers of both the Second and Fourteenth Amendments knew that the risks and benefits of arms — criminal misuse and defense against the same—were inextricably intertwined in the very concept of “bearing” arms,” the brief states. “They weighed those considerations and chose a broad right to keep and bear arms, rather than broad discretion to disarm the public, as not only the best solution, but one to be enshrined as the supreme law of the land — above any contrary choice made through mere legislation.” 

The methodology used by the justices in this case will determine the future of gun laws in the country. The court could use the intermediate scrutiny approach that has been followed by the circuit courts or it could adopt an originalist approach and apply a history based test to the law. 

“If the court adopts that sort of history based approach, there could be broader implications for a wider range of gun laws which will be susceptible to new challenges and that's very concerning to us as well,” Tirschwell said.

The Supreme Court had been set to hear another case about New York gun rights, that one focused on the transportation of weapons to gun ranges, but a change in the relevant laws mooted the appeal.

Justice Brett Kavanaugh noted at the time that both he and Justice Samuel Alito were "concern[ed] that some federal and state courts may" be misapplying two precedential cases on gun-control laws, the 2008 case District of Columbia v. Heller and the 2010 case McDonald v. Chicago.

Follow @KelseyReichmann
Categories / Appeals, Civil Rights, Health, Law

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