A unique case provides an opportunity for The Supreme Court to speak on the nature of the Second Amendment
At issue in New York State Rifle & Pistol Association (NYSRPA), Inc., et al., Petitioners v. Kevin P. Bruen, in His Official Capacity as Superintendent of New York State Police, et al is whether New York State’s restriction on individual firearms carry outside the home is a violation of the Second Amendment. This case focuses on an individuals’ rights to carry guns outside of the home for self-defense. It is contextually relevant to mention how different states issue their concealed carry weapon permits: on either a shall issue basis, or a may issue basis — unlike many aspects of the law these two paradigms are quite clear at their face. In shall issue states when an individual applies for a license to concealed carry a weapon, and it is legal for them to possess a firearm, they are issued a permit to carry. In may issue states the same procedure is followed, but the applicant for a permit must possess a valid reason; the exact statute at issue in NYSRPA v. Bruen states that individuals must have “proper cause” which can be satisfied by demonstrating “a non-speculative need for armed self-defense.”
As the petitioners in this case could not show that non-speculative need, they were denied a concealed carry license by Mr. Bruen. That lawsuit was dismissed by the second circuit (which covers New York), and petitioners appealed to The Supreme Court of the United States (SCOTUS). The exact issue in front of SCOTUS in this case is the nature of the permitting system in New York. One of the two individual petitioners in this case has a concealed carry permit that allows him to carry a weapon while outside of his home in the rural backcountry, as well as to and from work. This permit only limits his ability to carry in populous areas. The Court does not generally take up Second Amendment cases and have likely done so here because the circuit courts are in open disagreement about how exactly to interpret the law. The Court actually rejected a petition for certiorari on the same New York law in a case called Kachalsky v. County of Westchester. Commonly called cert, certiorari is a decision made by the court as to whether or not they’ll hear the case, or let the lower court ruling stand without issuing guidance themselves.
At the level of the Supreme Court there are two major cases — with this being the third regardless of how it is decided — that underpin the modern conception of the Second Amendment. These cases are DC v. Heller, and McDonald v. City of Chicago. In the first of these cases, Heller, the individual right to “keep and bear arms” was established. Before Heller the consensus was that the law applied only to the now generally defunct militias, and hence was a collective right. McDonald — the second landmark case on the Second Amendment in the twenty first century — established, on Fourteenth Amendment equal protection grounds, the right was enforceable against the states, further entrenching an individual’s right to keep and bear arms. These cases are the result of a decades-long political push from conservatives on what was at one point a settled issue.
In 1991 — five years after he retired from a 17 year long term as Chief Justice — Warren Burger described the discourse around firearm rights applying to the individual as “one of the greatest pieces of fraud on the American public by special interest groups that I have seen in my lifetime.” He went on to talk about the militia as a specific state army that was strictly regulated, and considered regulations similar to those around cars or boats as not in violation of the Second Amendment. When the Heller decision was issued in 2008, then candidate Barack Obama remarked that he “always believed that the Second Amendment protects the right of individuals to bear arms,” going on to say that the right is not absolute, as so stated by Scalia who authored the Heller decision. Obama’s remarks generally focused on the different regulatory needs of different communities. John Paul Stevens — one of the most liberal members of the court — authored a piece for The Atlantic in 2019 a few months before he died, citing Heller as the worst decision issued during his time on the court. This is especially relevant given that during his 35 year tenure on the court — from 1975 to 2010 — Stevens was in the dissent on cases such as Bowers v. Hardwick, Bush v. Gore, Citizens United v. FEC, and Exxon Shipping co. v. Baker.
The history of how Second Amendment rights have been interpreted as collective by some and individual by others is important in better understanding the arguments currently presented before the court. The petitioners are making an argument on the general basis of the Second Amendment and what it has come to mean in popular culture, while the respondents’ argument is focused more on the historical merit of New York’s law. This case and the general state of Second Amendment law are good examples of how societal perception of the law can, in some specific cases, influence the law itself. The Court’s decisions in Obergefell, and AFP v. Bonta are examples of how moments of progress can grant minoritized groups protection while the now overturned cases of Dredd Scott and Korematsu are both examples of how the justices of SCOTUS are not above the hateful fervor of a moment or the original sin of the United States.
In a dissent he authored on the DC Circuit court in 2011, now Justice Kavanaugh said that both Heller and McDonald “largely preserved the status quo of gun regulation in the United States.” If that is the case then NYSRPA v. Bruen may either continue to uphold that status quo or finally be the case to change it. The nature of the potential change that this case could bring is envisioned by an amicus brief by the American Civil Liberties Union (ACLU) in support of the respondents. This brief endorses the idea that gun “restrictions facilitate civic engagement, by promoting safety and reducing the chances that the disagreements inevitable in a robust democracy do not lead to lethal violence.” This brief almost calls back to days where members of congress would openly fist fight on the floor of the Capital. The ACLU’s is one of many briefs that imagine the potential violence this decision may bring if the case is ultimately decided for the petitioners. On the other side are groups like the Cato Institute, a libertarian think tank which considers the right to carry a firearm uninhibited by a non-speculative need an infringement on their constitutionally granted freedoms. If this seems interesting and you have a spare hour, the United States’ brief is a well put together argument in support of the respondents while the petitioners’ brief makes an interesting Fourteenth Amendment argument. The material changes to the law will not be clear until the case has actually been authored, which will occur in Summer 2022. A good example of how the author of an opinion is vital to the ultimate changes to federal law passed down is the recent decision in DNC v. Brnovich. This decision was authored by Justice Alito who is decidedly one of the most conservative members of the court. Alito wrote a quite expansive opinion effectively rolling back all of section two of the Voting Rights Act where a more centrist justice like Roberts — who is still right of center — may have written a more narrow opinion leaving at least a facsimile of free and fair elections.
You were so close.
"which considers the right to carry a firearm uninhibited by a non-speculative need an infringement on their constitutionally granted freedoms."
The Constitution doesn’t grant freedoms. The Bill of Rights (where you will find the Second Amendment) does not "grant" anything. It simply restricts government actions on several fronts. That is, the BOR says "The people have these rights before this document goes into effect, and the government may not take away or ‘infringe’ on those rights."
Well said Tom Gresham!