New York’s stringent laws make it a ‘fat target’
The right to keep and bear arms took a major advance in the 2008 Supreme Court case District of Columbia v. Heller. According to a summary of the case, ruled 5-4 with Justice Antonin Scalia writing for the majority, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
The court followed that up with McDonald v. City of Chicago in 2010, extending the ruling to the states.
On April 26, the court decided to take up the case of New York State Rifle & Pistol Association, Inc. v. Bruen. New York has one of the strictest laws regarding the right to carry a concealed handgun—it imposes a “proper cause” to issue permits. Users must demonstrate a compelling need for protection, such as carrying cash. In a press release supporting the case, the NRA stated that, “law-abiding citizens should not be required to prove they are in peril to receive the government’s permission to exercise this constitutionally protected right.”
The petitioners argued against the state’s “proper cause,” urging, “The time has come for this Court to resolve this critical constitutional impasse and reaffirm the citizens’ fundamental right to carry a handgun for self-defense.”
According to a Supreme Court document, the judges will decide on the following: “Whether the Second Amendment prohibits New York from requiring residents who wish to carry a concealed firearm in public to have an actual and articulable need to do so.”
Eric M. Freedman, a constitutional law professor at the Maurice A. Deane School of Law at Hofstra University, noted that in agreeing to take up the case, the justices narrowed their inquiry. Instead of a sweeping rejection of all New York gun laws, they will limit the inquiry to the constitutionality of the petitioners being denied the permits.
“The mostly likely outcome is a narrow decision striking down what they perceive as the most extreme parts of the New York system. Or even a remand to the lower courts to consider it more closely,” Freedman said. “At the moment, it does not appear to be headed toward a blockbuster statement.”
He noted that the highest court has not taken up a gun case since McDonald in 2010, despite dozens of chanced to do so.
Freedman said he knows and respects Paul Clement, the counsel for the petitioners, and “we talk frequently.”
He went on to say that the original petition wanted the court to rule on whether the Second Amendment allows the government to prohibit law-abiding citizens from carrying weapons outside the home for self-defense. If the Supreme Court were to decide on Clement’s take, he noted, “any prohibition on carrying guns outside the home would be unconstitutional.”
Freedman added, “The way they rewrote it was, whether the state’s denial of petitioners’ applications for concealed carry licenses for self defense violated the Second Amendment. In other words, was there some error in denying these particular individuals? Under New York’s system, you have to apply for a license and explain your reasoning. You can transport your weapon between the home and the gun range. But if you’re going to walk around the streets with it, then you have to have a license which explains that you carry lots of cash or are a prominent politician.”
Though they are confirmed for life, justices are sensitive to public opinion, Freedman argued, and they go to great lengths to avoid appearing “too political,” even if the court is steeped in politics.
He went on to say that the justices all pay lip service to precedence, and rarely reverse previous rulings. They are also guided by the late Justice Ruth Bader Ginsburg’s Justice counsel that the Supreme Court should not take huge steps, but to move inch by inch over time.
Freedman believes that since last summer the court, with conservatives holding a 6-3 majority, has made a number of rulings “that dramatically reduced the credibility of the court as a body driven by law and moving judiciously as a body should. So it’s a plausible speculation that now, when they take on the issue of gun control, they seek to do it in a more moderate and limited way to demonstrate that they are exercising judicial restraint.”
Even when writing his Heller opinion, Justice Scalia affirmed, “Like most rights, the right secured by the Second Amendment is not unlimited…nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Freedman said that Scalia added the paragraph on regulations to secure the fifth vote.
Ultimately, he said, “The New York State system, which is stringent by national standards, is thought to be a fat target from the perception of [gun rights advocates]. The advocates pick these cases carefully and the justices do as well. They’ve had New York in their sights for a long time because it’s tempting target.”
Freedman believes that the case will be decided next spring.