Jeff Lewis in the Daily Beast about Supreme Court and the Second Amendment
The ruling “establishes a very high bar for all gun restrictions,” constitutional lawyer Jeff Lewis told The Daily Beast.
In a majority opinion authored by Justice Clarence Thomas, the Supreme Court has cleared the way for even looser gun laws as the nation continues to reel from near-daily mass shootings that have claimed 312 lives in 2022 alone.
Thomas, a President George H. W. Bush nominee, wrote in the 6-3 decision that the Second Amendment protects the right of individuals to carry a gun outside the home. The court struck down New York’s “proper-cause” requirement to obtain a concealed-carry license, saying it “violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.”
In concurring, Justice Samuel Alito wrote, “The police cannot disarm every person who acquires a gun for use in criminal activity; nor can they provide bodyguard protection for the State’s nearly 20 million residents or the 8.8 million people who live in New York City. Some of these people live in high-crime neighborhoods. Some must traverse dark and dangerous streets in order to reach their homes after work or other evening activities. Some are members of groups whose members feel especially vulnerable. And some of these people reasonably believe that unless they can brandish or, if necessary, use a handgun in the case of attack, they may be murdered, raped, or suffer some other serious injury.”
Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented. “Consider, too, interactions with police officers,” Breyer wrote. “The presence of a gun in the hands of a civilian poses a risk to both officers and civilians.”
Breyer pointed out that laws regulating “the public carriage of weapons” in England date back to the 13th century, and existed in North America since “before the founding.”
“Similar laws remained on the books through the ratifications of the Second and Fourteenth Amendments through to the present day,” Breyer wrote. “Many of those historical regulations imposed significantly stricter restrictions on public carriage than New York’s licensing requirements do today.”
Speaking to reporters after the ruling was handed down, New York Gov. Kathy Hochul vowed to hold the line on gun safety.
“We are not powerless to respond to this,” she said.
Constitutional lawyer Jeff Lewis told The Daily Beast the decision does more than simply strike down state concealed-carry laws.
“The court today establishes a very high bar for all gun restrictions,” he said. “Unless a legislature or court can establish that the regulation existed or was consistent with a regulation that existed at the time the Second Amendment was enacted, a gun restriction will no longer survive a Second Amendment challenge. Very few state gun laws will be able to survive such a high standard.”
Lawrence Gostin, director of the O’Neill Institute for National and Global Health Law at Georgetown University, said he was “appalled” but “not surprised” by the ruling.
“This was expected from the Court’s conservative supermajority who have long sought to define the Second Amendment expansively,” he said in an emailed statement. “Their decision was not constitutional, but purely political. Just as the nation grieves children and others who needlessly die from firearm violence, the nation’s highest court is making it much harder to protect the vulnerable.”
At the same time, the Legal Aid Society said in its own statement that the decision “may be an affirmative step toward ending arbitrary licensing standards that have inhibited lawful Black and Brown gun ownership in New York.”
The ruling, which stems from a Dec. 2020 challenge by the New York State Rifle & Pistol Association (NYSRPA), is set to upend the ability of individual states to require concealed carry applicants show “proper cause” for being allowed to leave home armed. The plaintiffs, Robert Nash and Brandon Koch, from Upstate New York, were denied carry permits in 2016 and 2018 by county authorities because they did not “face any special or unique danger” to their lives. After instead being granted permits for hunting and target shooting, the two sued—under the umbrella of the NYSRPA, the NRA’s New York affiliate—George P. Beach II, the then-superintendent of the New York State Police, and New York State Supreme Court Justice and Rensselaer County Licensing Officer Richard J. McNally, Jr.
“Up until now, the court’s been pretty clear that somebody has the right to have a gun in their own home,” Lewis told The Daily Beast ahead of the ruling. “But what the high court has never weighed in on is…do you have the right outside of your house to have a gun? … The people that challenged this law said, ‘No, the Second Amendment’s absolute—the presumption should be [that] we have the right to a concealed weapon, and should be up to the government to take it away from us on a case-by-case basis, not establishing the right to weaponry on a case- by- case basis.’”
The case, which became known as New York State Rifle & Pistol Association v. Bruen after Beach was replaced by Kevin P. Bruen, took aim at dismantling New York’s century-old licensing requirement. Nash and Koch argued that having to prove they needed guns for self-protection was unconstitutional, and that they shouldn’t need to demonstrate any special threat.
In his application, Nash pointed to a “string of recent robberies in his neighborhood,” and said he had successfully completed an advanced firearms safety course. Koch, for his part, cited “extensive experience in the safe handling and operation of firearms and the many safety training courses he had completed.” However, McNally rejected both men for full, unrestricted carry permits because they did not prove they were any more at risk than any other members of the general public.
At least eight other states and municipalities have similar measures in place which restrict concealed carry to those with occupations or personal circumstances that very obviously require being armed. In New York City, applicants must submit a “letter of necessity” explaining why they need to have a weapon on them at all times—not just because they want to defend themselves from some undefined “threat.” In past years, some of those approved for carry permits in New York have included Donald Trump, Donald Trump Jr., Fox News host Sean Hannity, radio personality Howard Stern, and Martha Stewart’s daughter, Alexis. Today, someone in nearly half of all American households owns a gun, according to a University of Chicago survey.
Upon their applications being rejected, Nash and Koch challenged the decisions in federal court, where they lost again. When an appeals court upheld the dismissal, Nash and Koch took their case to the Supreme Court.
“New York continues to make it all but impossible for typical, law-abiding citizens to exercise their right to bear arms where the right matters most and confrontations are most likely to occur: outside the home,” their lawyers stated in a July 2021 brief, arguing that the decision is subject to “the satisfaction of a local official vested with broad discretion” which gives licenses only to a select few and excludes “the people” referred to in the U.S. Constitution. “As to everyone outside that small subset, there is no outlet to carry handguns for self-defense at all. That restrictive and discretionary regime is upside down. The Second Amendment makes the right to carry arms for self-defense the rule, not the exception, and fundamental rights cannot be left to the whim of local government officials.”
In oral arguments last November, Chief Justice John Roberts said the “idea you need a license to exercise the right is unusual in the context of the Bill of Rights.”
Trump appointee Justice Brett Kavanaugh said he viewed the situation in relatively stark terms.
“If it’s the discretion of an individual officer, that seems inconsistent with an objective constitutional right,” Kavanaugh told New York Solicitor General Barbara Underwood during one particularly pointed exchange. “I mean, what if you’re a runner and you say I run a lot, and, as you correctly pointed out earlier, there are a lot of serious violent crimes on running paths. It’s a real problem. Is that good enough?”
Underwood argued that limits on carrying guns in public have been in place for centuries, echoing U.S. Deputy Solicitor General Brian Fletcher’s point that the onus to show cause for concealed carry has long been placed on individuals.
New York City Mayor Eric Adams, himself a former NYPD commander, has called the notion of “good guys with guns” among the citizenry being a counterweight to armed criminals as “so dumb.”
“There’s a tendency that people believe if they’ve got a gun, why have it, if I’m not using it?” Adams said in May. “That’s just the mindset of carrying a gun. We have to rid our streets of guns from good guys and bad guys.”
During November’s oral arguments, Justice Amy Coney Barrett, another Trump appointee, asked about restrictions by cities or states on guns in certain high-density areas, such as Times Square on New Year’s Eve. Kagan, an Obama appointee, said she thought it was “completely intuitive that there should be different gun regimes in New York than in Wyoming or that there should be different gun regimes in New York City than in rural counties upstate.” Still, Kagan noted the inherent friction “with our notion of constitutional rights generally.”
Thomas, historically one of the most conservative justices on the court, suggested a “tailored approach for the Second Amendment” based on population density.
“You can’t hunt with a gun in Central Park, but I’m certain there are places in Upstate or Western New York where you can,” he said.
To that, Roberts replied, “If the purpose of the Second Amendment is to allow people to protect themselves, that’s implicated when you’re in a high-crime area. How many muggings take place in the forest?”
Out in front of the Supreme Court on Thursday morning, there was little talk about guns. Instead, demonstrators on both sides of the abortion debate on a rainy Washington day attempted to yell over each other as tensions escalated.
“Rise up for abortion rights, for abortion rights rise up,” one group of activists chanted.
source: The Daily Beast