SAF Predicts Victory in Supreme Court 2nd Amend Right to Carry
SAF PREDICTS RIGHT-TO-CARRY VICTORY AT SUPREME COURT
– Following Wednesday morning’s oral arguments before the U.S. Supreme Court in the case of New York State Rifle & Pistol Association v. Bruen, the Second Amendment Foundation predicts a victory for the right-to-carry a firearm in public for personal protection.
“Based on questions from the Supreme Court Justices,” said SAF founder and Executive Vice President Alan M. Gottlieb, “I’m confident we’re going to win either on a 5-4 or 6-3 vote.”
He said suggestions from New York Solicitor General Barbara D. Underwood and Deputy Solicitor General Brian H. Fletcher with the U.S. Justice Department—both defending New York’s restrictive “may issue” carry law—that the case be remanded back to the lower courts smacks of an attempted stall.
“I think at that point the anti-gun rights justices as well as the attorneys for New York recognized they are not going to win,” Gottlieb observed, “and they were trying to forestall an unfavorable ruling. During the oral arguments several justices affirmed that the right to keep and bear arms does not stop at the front door.”
“This important Supreme Court case,” he added, “was only made possible by SAF’s 2010 Supreme Court victory in McDonald v. City of Chicago, which incorporated the Second Amendment to the states via the 14th Amendment.”
Presenting the oral argument for the plaintiffs, attorney Paul Clement told the court that the constitution protects carrying concealed firearms outside the home. He also said there should be no requirement for a citizen to prove a special need in order to exercise a constitutionally protected fundamental right. Questions and comments by several justices pointed out that many lower courts were not adhering to the Heller and McDonald decisions by the high court and not applying the proper heightened scrutiny levels that the Second Amendment deserves.
SAF filed an amicus brief with the U.S. Supreme Court supporting the NYSR&PA case, which was joined by several other gun rights organizations.
“After listening to the oral arguments,” Gottlieb said, “I’m convinced the ruling will impact the other seven states that do not recognize Second Amendment rights with their discretionary ‘may issue’ carry laws. I also think the court’s ruling should impact dozens of other cases SAF has filed that are currently in the lower federal courts.
“An affirmative ruling, which we expect sometime in June 2022,” Gottlieb noted, “will only reinforce our mission to win back firearms freedom, one lawsuit at a time.”
THE CASE:
QUESTION PRESENTED
Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self- defense violated the Second Amendment.
INTRODUCTION
The Second Amendment guarantees to “the people” the rights “to keep and bear arms.” While the right to “keep arms” may have its greatest application in the home, the right to carry arms obviously extends outside the home. In District of Columbia v. Heller, 554 U.S. 570 (2008), this Court not only definitively held that the Second Amendment secures individual rights, but recognized that those rights are intimately connected to the right to self-defense. Specifically, Heller held that “all Americans,” not just “an unspecified subset,” have the rights “to possess and carry weapons in case of confrontation.” Id. at 580-81, 592. Two years later, the Court reaffirmed that “individual self-defense is ‘the central component’ of the Second Amendment right,” that “citizens must be permitted ‘to use handguns for the core lawful purpose of self-defense,’” and that this right “is fully applicable to the States.” McDonald v. City of Chicago, 561 U.S. 742, 750, 767-68 (2010) (plurality op.) (quoting Heller, 554 U.S. at 599, 630) (brackets omitted).
In reaffirming the promise of the Second Amendment, Heller surveyed a wealth of historical materials that made clear beyond cavil that the vast majority of jurisdictions have honored the right to carry arms for self-defense. That remains true today in most of the Nation—but not in New York. New York continues to make it all but impossible for typical, law-abiding citizens to exercise their right to bear arms where the right matters most and confrontations are most likely to occur: outside the home. The only people who may carry a handgun beyond the curtilage are those who can show, to the satisfaction of a local official vested with broad discretion, that they have a special need for a handgun that distinguishes them from the vast bulk of “the people” protected by the Second Amendment. As to everyone outside that small subset, there is no outlet to carry handguns for self-defense at all. That restrictive and discretionary regime is upside down. The Second Amendment makes the right to carry arms for self-defense the rule, not the exception, and fundamental rights cannot be left to the whim of local government officials.
New York’s regime is irreconcilable with the text, history, and tradition of the Second Amendment. The textual inquiry is not a close question, as the text guarantees a right to “bear” arms as well as “keep” them, and a right to bear arms only within the confines of a home offends both common sense and original public meaning. The historical inquiry is no closer, and has already been answered in Heller. Founding-era cases, commentaries, and laws on both sides of the Atlantic, most of which were surveyed in Heller, confirm that the founding generation understood the Second Amendment and its English predecessor to guarantee a right to carry common arms for self-defense. The American tradition of protecting that right remained virtually unbroken in the century and a half following ratification; severe restrictions on the right to carry arms typically arose only in the context of efforts to disarm disfavored groups, like blacks in the South and immigrants in the Northeast. Those outlying and discriminatory efforts only underscore the framers’ wisdom in enshrining the right of all “the people” to keep and bear arms in our founding document.
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Because text, history, and tradition confirm that the Second Amendment protects the right to carry common arms like handguns for self-defense, the state cannot flatly prohibit law-abiding citizens like petitioners from exercising that right. That was the lesson of Heller. Indeed, Heller likened the District of Columbia’s unconstitutional ban on possessing handguns inside the home to “severe restrictions” on carrying common arms outside the home. Like the District’s regime in Heller, New York’s regime effectively criminalizes the exercise of a fundamental constitutional right. Just as the District’s extreme regime could not survive any meaningful form of scrutiny, neither can New York’s effort to let only the few exercise a right that the Constitution secures to all.