Conservative Supreme Court Takes Up Major Second Amendment Case
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Conservative Justices Have a Chance to Knock Down Handgun Laws Across the Country as Gun Club Targets N.Y.’s Strict Licensing Regime

WASHINGTON, DC – APRIL 23: Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, DC on April 23, 2021. Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett.

The Supreme Court of the United States on Monday agreed to take up a Second Amendment case with far-reaching implications for private gun ownership.

Stylized as New York State Rifle & Pistol Association Inc. v. Corlett, the high profile case will determine whether a New York State law that makes it all-but impossible for a regular citizen to carry a gun outside their home–by way of a highly restrictive and stringent permitting process–is in violation of the Second Amendment.

“We will vigorously defend any challenge to New York state’s gun laws that are intended to protect public safety,” New York Attorney General Letitia James (D) said in a statement. “We look forward to presenting the state’s arguments at the U.S. Supreme Court and to showing how New York’s laws protect public safety in a manner consistent with the Second Amendment.”

The petitioner is a pro-gun ownership and self defense-oriented group who are standing in the place of two men denied a license by Empire State authorities. They claim that N.Y. Penal Law §400 is unconstitutional because the “proper cause” regime effectively functions as a wholesale ban on the licensed carry of handguns.

Their petition for writ of certiorari explains this system:

[T]he only way to lawfully possess a firearm—regardless of whether one wishes to keep it inside the home or bear it outside the home—is by obtaining a license pursuant to N.Y. Penal Law §400.00. Licenses are issued by “licensing officer[s]”—typically judges or law enforcement officers—and “[n]o license shall be issued or renewed” unless the licensing officer determines that the applicant, among other things, is of good moral character and lacks a history of crime or mental illness, and that “no good cause exists for the denial of the license.”

Pro-gun advocates have long despised New York’s framework because the term “proper cause” is not defined in the statute which gives licensing officers something akin to carte blanche authority over the dispensation of handgun permits–with occasional instruction from the courts on how to apply the standard.

This state of affairs, the gun lobby claims, “precludes typical New Yorkers from carrying their handguns for self-defense.” And that, the petitioners say, is why the statute must be struck down.

The petition frames the issue as an unresolved and open question that necessarily must be answered by the nation’s high court in light of the exceedingly sparse Second Amendment precedent.

“Perhaps the single most important unresolved Second Amendment question after this Court’s landmark decisions in District of Columbia v. Heller and McDonald v. City of Chicago, is whether the Second Amendment secures the individual right to bear arms for self-defense where confrontations often occur: outside the home,” the petition begins. “The text, history, and tradition of the Second Amendment and this Court’s binding precedents compel the conclusion that the Second Amendment does indeed secure that right.”

In the landmark cases cited above, the Supreme Court for the first time ever, weighed in on whether regulations that effectively neutered the Second Amendment were constitutional. They decided they were not, first in D.C. and then in the several states, respectively. Both cases, however, left the possibility of a broad Second Amendment right to non-home-based handgun possession for the nine justices to decide sometime in the future.

It looks like that future is now–and it’s been a long time coming.

The court has entertained only one other Second Amendment case since Heller and McDonald were decided and handed down over a decade ago. That case, not coincidentally brought by the same petitioners, was rendered moot following oral argument due to a change in the law so the court never issued an opinion.

“A law that flatly prohibits ordinary law-abiding citizens from carrying a handgun for self-defense outside the home cannot be reconciled with the Court’s affirmation of the individual right to possess and carry weapons in case of confrontation,” the gun club’s petition argues. “The Second Amendment does not exist to protect only the rights of the happy few who distinguish themselves from the body of ‘the people’ through some ‘proper cause.’ To the contrary, the Second Amendment exists to protect the rights of all the people.”

The court’s decision to take up the case reads not entirely unlike a fait accompli for the decisions that will be reached on the merits here due to the six-strong conservative majority on the lifetime bench.

Specifically, and of particular comfort to the petitioners (and perhaps the chagrin of anti-gun advocates), Justices Brett Kavanaugh and Samuel Alito have opined in dicta that lower courts “may not be properly applying” the holdings in Heller and McDonald.

The gun club echoes those sentiments in their petition.

“There is no Second Amendment issue more pressing than whether the fundamental, individual right to self-defense is confined to the home,” they argue. “While the vast majority of states have correctly affirmed the individual’s right to decide for him or herself whether to carry a handgun for self-defense, a minority of jurisdictions seem determined to control the very people and rights that the Second Amendment promises ‘shall not be infringed.’ That minority includes some of the nation’s most populous cities and states, located in circuits that have stubbornly resisted the controlling decisions of this Court in Heller and McDonald. As a result of decisions that failed to abide by this Court’s precedents, tens of millions of citizens are being deprived of individual, fundamental rights guaranteed by the Constitution. That is untenable.”

Given precedent and considering the court’s power dynamics, that argument may prove persuasive.

[image via Erin Schaff-Pool/Getty Images]

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