Supreme Court to Hear Landmark Second Amendment Case …

Scholars and activists began to argue for an individual right to bear arms, but it would be another 31 years until the Supreme Court laid pen to paper on the 2008 and 2010 decisions that allowed citizens to keep weapons in their homes.

It was controversial. In both cases, four justices thought the amendment is just about the militia, but thats not what prevailed, says Liebell, explaining that the courts chose to rule in favor of an individuals right to self-defense, grounded in common law.

Fast forward to 2021 and New York State Rifle & Pistol Association v. Corlett, a case involving two NYSRPA members, Robert Nash and Brandon Koch. Nash and Koch had individually applied for a concealed-carry firearm license for the purpose of self-defense, citing recent neighborhood robberies (Nash) and completion of a firearms safety course (Nash and Koch).

However, both parties were denied the specific license they requested under New Yorks proper cause standard for self-defense. The law requires that an individual have a special need for self-protection distinguishable from that of the general community.

What exactly qualifies as a special need under New York law?

If youre carrying money at night, if youre doing business with people at weird hours when others arent around: Those are the scenarios in which they regularly grant this, Liebell says, adding that domestic violence survivors may also fall into this category. Its far more common than you would think.

New Yorks proper cause standard qualifies it as one of nine states with a may-issue permit policy. This means that a permit is required to carry a concealed handgun and that the granting of said permit is subject to certain criteria laid out by the state. Even then, it is up to local authorities discretion whether or not to grant the permit by determining proper cause.

Before the 14th Amendment was passed and ratified in 1868, states like Indiana, Tennessee, Virginia, Alabama, Ohio, all banned concealed weapons. You had to actually hand over your guns and put them in a box to come into Dodge City or Tombstone, Arizona places we associate with guns in the Wild West, says Liebell. So, youve got to look at the many laws that have restricted concealed carry.

New Yorks may issue is just one interpretation of the Constitution; other regulationsrange from not requiring an individual to have a permit to carry a concealed weapon, to not allowing individuals to carry a concealed weapon at all.

In a federal system like ours with 50 states, the Constitution is there to set certain standards, and then the states and localities have to actualize those standards, explains Liebell.

And so, it is up to the Supreme Court to determine if New Yorks decision to deny a license falls under its local purview, or if it violates Koch and Nashs Second Amendment rights.

There are several directions the court could go in next month and, with a number of new justices and a conservative-majority bench, it will be hard to predict which way theyll lean.

We do not know exactly what they are willing to do in terms of textualism, which is exactly what the text says, or original understanding at the time, which is very fraught and establishing it, in my scholarly opinion, is really impossible, says Liebell.

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Supreme Court to Hear Landmark Second Amendment Case ...