First major 2nd Amendment case before the Supreme Court in over a decade could topple gun restrictions | Analysis – TucsonSentinel.com

Posted Oct 8, 2021, 9:21 am

Eric RubenSouthern Methodist University/The Conversation

The stakes in one of the most significant Second Amendment cases in U.S. history are high.

The Supreme Courts ruling in New York State Rifle & Pistol Association v. Bruen,expected by mid-2022, could declare a New York state restriction oncarrying concealed handguns in public places unconstitutional.

Such a ruling in favor of the plaintiffs, which include a NationalRifle Association affiliate, could loosen gun regulations in many partsof the country.

In my view as a Second Amendment scholar,this case is also noteworthy in that how the court reaches itsconclusion could affect the Second Amendment analysis of all weaponslaws in the future.

The court is set to hear oral arguments on Nov. 3.

In 1911, after an increase in homicides, New York instituted ahandgun permitting system. In 1913, the permitting system was amended toaddress concealed carrying.

For more than a century, someone seeking to carry a concealed handgunfor self-defense in the state has needed to file a permit applicationshowing that they have what the law calls proper cause.

To obtain an unrestricted permit, applicants mustdemonstrate a special need for self-protection distinguishable fromthat of the general community, such as by showing they are beingstalked.

New Yorks attorneys defend this restrictive approach to issuingconcealed carry permits as an effective means to reduce gun violence. In2020, there were 43,592 gun deaths in the United States, including suicides and homicides. There are also over 80,000 non-fatal firearm injuries each year.

New York has some of the strictest gun laws in the country, and its homicide rate is below the national average.

Robert Nash and Brandon Kochwere denied unrestricted concealed carry permits because a judgedetermined that they did not satisfy New Yorks proper-cause standard.

Instead, Koch was issued a licenseto carry a concealed handgun for self-defense while traveling to andfrom work. Both plaintiffs licenses also permit them to carry concealedhandguns for hunting and target practice, and for self-defense in areasnot frequented by the general public.

Along with the NRAs New York affiliate, Nash and Koch contend thatthese limitations on their ability to carry a concealed handgun violatetheir right to bear arms. They assert a broad view of the right to carrya handgun, one that extends virtually whenever and wherever the need for self-defense might arise.

New Yorks law defies that conception of the Second Amendment.

In considering Bruen, the Supreme Court will focus on the meaning of an important precedent: District of Columbia v. Heller.

When the Supreme Court issued its Heller ruling in 2008, a 5-4majority struck down Washington, D.C.s ban on the possession ofhandguns in the home. The court held for the first time that the SecondAmendment protects an individuals right to keep and bear arms.

Writing for the majority, the late Justice Antonin Scalia declaredthat the central component of the Second Amendment was not a well regulated Militia, but rather the inherent right of self-defense.

But the majoritys decision included cautionary language that lower-court judges have since relied on to uphold gun laws.

The right secured by the Second Amendment is not unlimited and isnot a right to keep and carry any weapon whatsoever in any mannerwhatsoever and for whatever purpose, Scalia wrote. His opinion evencontained a list of presumptively lawful regulatory measures, such asrestrictions on the possession of firearms by felons or bans on carryingthem in sensitive places like schools and government buildings.

The NRA and other gun rights supporters have bristled at the general acceptance by judges of the constitutionality of laws restricting firearm use.

That discontent culminated in Bruen.

In 1980, most Americans lived in places that either banned concealed carry or had a New York-style proper cause permitting regime. An NRA push beginning in the late 1980s loosened public carry laws around the country.

In states where gun rights advocates possess relatively little clout,they hope that Bruen will accomplish through the courts what they havefailed to accomplish through the political process.

Today, New York is one of eight statesrequiring that people seeking to carry concealed handguns have aproper or good cause. California, Delaware, Hawaii, Maryland,Massachusetts, New Jersey and Rhode Island have similar laws on thebooks.

If the court strikes down New Yorks law, Americans in those statescould expect an increase in the number of people legally carryinghandguns in their communities. Anyone who wants to carry a concealedhandgun would have an easier time doing so.

Bruen could also be a turning point for how judges evaluate allSecond Amendment cases whether theyre about assault weapons, tasersor felon-in-possession offenses.

Until now, judges have generally assessed whether such restrictions are justified by current public safety concerns.

Many gun rights advocates are asking the Supreme Court to reject thatapproach. Instead, they want judges to decide cases on the sole basis of history and traditionunless the judiciarys interpretation of the text of the SecondAmendment resolves the issue. This is known as the text, history andtradition test.

Justice Brett Kavanaugh is credited with first articulating this test in a dissent he issued prior to his rise to the Supreme Court.

Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett all have embraced similar judicial philosophies to some degree.

But theres a catch: Guns have always been regulated in America.

New Yorks regulation has been on the books for over a century and had a legacy that extended back even further.

If the justices abandon a conventional approach for the text, historyand tradition test, I would expect a new round of lawsuits over weaponslaws that have already survived prior court challenges. Gun rightsadvocates would likely, for example, sue over restrictions on large-capacity magazines or safe storage requirements in places where those issues have already been resolved.

This litigation would call on judges to rule on the sole basis of a difficult historical exercise: comparing modern laws addressing modern guns and contemporary gun violence to the laws, practices and weapons of a bygone era.

The court has three main options.

It could uphold New Yorks law. It could strike it down. Or it could find a middle ground, such as issuing a narrow ruling that punts big questions about gun restrictions down the road.

Chief Justice John Roberts has steered his colleagues toward narrow rulings before.But he will hold little sway if the three justices former PresidentDonald Trump appointed team up with Samuel Alito and Clarence Thomas,the courts two other conservatives, on a far-reaching majority opinion.

Trump conferred with the NRA before nominating Gorsuch, Kavanaugh and Coney Barrett all of whom received the gun groups blessing.

The ruling will underscore the significance of their presence on the court.

Assistant Professor of Law, Southern Methodist University

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First major 2nd Amendment case before the Supreme Court in over a decade could topple gun restrictions | Analysis - TucsonSentinel.com