This morning, while most of us were reclining on one elbow and enjoying a cigarette and perhaps a warm, damp washcloth in the post-election afterglow of the Glenn Younkins, Winsome Sears, and Jason Miyares sweep of Virginia’s elections, the Supreme Court heard arguments in the first major Second Amendment case to make its docket since McDonald vs. Chicago in 2010. This is not because the Second Amendment hasn’t been under siege but because Chief Justice John Roberts has shown scant interest in treating the Second Amendment as anything other than a curious artifact of our history.
A good argument was made, but the day didn’t go according to plan for gun-grabbing gangsters.
This case is from New York City and it’s called New York State Rifle & Pistol Association vThe issue is available at. Bruen. Below is a brief sketch of the issue. New York’s state has made it very difficult for ordinary people to keep concealed weapons away from their homes since 1896. New York follows what is called a “may issue” standard for obtaining a license to carry your weapon. What that means is that to carry a firearm outside your home, you must convince some state apparatchik that you have a “proper cause” to do so. If you live in a socialist sh**hole, such as I do, that means that it is virtually impossible to get a concealed carry permit for any reason other than you routinely carrying large amounts of cash and makes the Second Amendment a legal fiction.
New York’s law in the middle of this case is similar to gun control measures in many other states such as California, Hawaii and Massachusetts. Similar restrictions are also in place for many cities. It requires anyone who wants a license to carry a concealed handgun outside of the home to show “proper cause” for the license. Courts in New York have defined “proper cause” to require applicants to show a special need to defend themselves. Someone who is the victim of repeated physical threats may be qualified. But a general desire to protect oneself or one’s property is not enough to obtain an unrestricted license to carry a concealed handgun. (New York generally does not allow “open carry,” the practice of carrying unconcealed guns in public.)
A gun-rights group, as well as two men named Robert Nash (and Brandon Koch), are the defendants in this case. Both of their applications for concealed carry licenses were refused. Both men, however, were granted a “restricted” license that allows them to carry a gun outside the home for target shooting and hunting. Koch may also transport to and from work with a handgun to protect himself.
Koch and Nash went to federal court with the advocacy group to fight the ban against handguns that are not licensed. They also challenged what they view as the overly draconian “proper cause” requirement. The district court granted the state’s request to throw out the lawsuit, and the U.S. Court of Appeals for the 2nd Circuit upheld the dismissal. That led the challengers to come to the Supreme Court, which agreed to decide whether the state’s denial of Koch’s and Nash’s applications for a license violated the Second Amendment.
These are highlights from the hearing, via Washington Post.
The main arguments of the left seemed to revolve around the fear that New York was much more violent than the 41 “shall issue” states.
Justice Stephen G. Breyer pressed the attorney for the two gun owners about how the court could craft guidelines that would not lead to “gun-related chaos.”
Breyer suggested that even people of “good moral character” who had consumed a lot of alcohol at a football or soccer game could end up getting “pretty angry at each other.”
If those people were carrying concealed weapons at sporting events, he said, statistics show that “a lot of people end up dead.”
Breyer’s hypothetical is just nonsense from two levels. Breyer is not a legislative assistant. He should not be concerned about how to “craft guidelines” that would justify when a citizen can exercise their Constitutional rights. The second is that most people in the country already have the New York regime, while there aren’t mass shootings at sporting events.
Kavanaugh hit home with his concern that the exercise of the Second Amendment, under New York’s system, will be left to the whim of the person reviewing a permit application.
Justice Brett M. Kavanaugh admitted that permits have been issued by states in the past for open carry of firearms. But “how do we think about,” Kavanaugh asked U.S. Deputy Solicitor General Brian H. Fletcher, “a separate tradition, that the chief justice and others have referred to in our constitutional law of concern, about too much discretion in exercise of authority over constitutional rights and that too much discretion can lead to all sorts of problems, such as our history shows.”
…
“It seems like before you impose more restrictions on individual citizens and infringe our constitutional rights based on this theory, you should have to show” that those other states have “a lot more accidents, crime, and I don’t see any real evidence of that,” Kavanaugh said.
I’d argue that it goes even further than that. Rich people may hire lawyers to help them write applications or lobby agencies for favorable decisions. What about the rest? It’s not so. Celebrities with bodyguards are often seen swanning around the most restrictive gun laws in the country. They have one law and we have a completely different one.
Chief Justice Roberts appears to be for us once again.
Chief Justice John G. Roberts Jr. noted that constitutional rights, like the Second Amendment right for arms bearers, do not need to be justified. “The Constitution gives you that right,” Roberts said. “And if someone’s going to take it away from you, they have to justify it.”
Brian H. Fletcher, the principal deputy solicitor general arguing in support of the New York law, said: “The whole question is whether the Second Amendment right to keep and bear arms confers that right to have a pistol with you for self-defense. Even absent a showing of demonstrating need.”
Roberts responded: “I’m not sure that’s right. Roberts replied, “I don’t know what the right is. It would be strange to make it dependent on a permit program.” One could argue that the right to exercise it is restricted in this particular case, similar to First Amendment rights. But the idea that you need a license to exercise the right, I think, is unusual in the context of the Bill of Rights.”
Roberts can become a great person when he stops trying to be Mr. CONGENIality and instead focuses on what is at hand, rather than worrying about the next WaPo column that threatens to fill the Supreme Court. One of those days was this. There aren’t enough of them.
Roberts and Kavanaugh may have presented the intellectual arguments but Alito chose to go for the gut-punch.
Justice Samuel A. Alito Jr. brought up the topic of self-defense in everyday life on New York’s streets. “Could I explore what that means for ordinary law-abiding citizens who feel they need to carry a firearm for self-defense?” Alito asked.
He raised the issue of people who work late in Manhattan, may have to walk through a high- crime area to get home and are “scared to death.” He queried: “They do not get licenses, is that right?”
“That is, in general, right,” New York Solicitor General Barbara Underwood said. “If there’s nothing particular to them.”
“How is that consistent,” Alito responded, “with the core right to self-defense, which is protected by the Second Amendment?”
Underwood answered, “Because the core right to self-defense doesn’t, as this court said, doesn’t allow for all to be armed for all possible confrontations in all places.”
″There are a lot of armed people on the streets of New York and in the subways late at night right now. Aren’t there?” Alito asked. “All these people with illegal guns, they’re on the subway, they’re walking around the streets. But the ordinary, hard-working, law-abiding people I mentioned, no, they can’t be armed.”
Bearing Arms noticed that both the right and left are reading the tea leaves in the same manner (see WaPo: It Looks like SCOTUS is Going to Strike Down NY’s Carry Laws and Gun ControlActivists Already Plan for SCOTUS Loss).
On the whole, the day went very well for demolishing this example of New York’s anti-gun extremism. The left tried to sidetrack the argument onto the subject of what kinds of regulations should be cover weapons at sporting events and the like, but the majority seemed to agree that this fine-tuning should be left for another day…a day after New Yorkers and those citizens in other anti-freedom states can carry a concealed weapon for any reason or no reason at all.
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