For the first time in more than a decade, the Supreme Court has agreed to hear a Second Amendment case that legislators will not try to moot before it's decided. The case, New York State Rifle & Pistol Association v. Corlett, targets New York's may issue permitting scheme that requires ordinary citizens demonstrate "proper cause" to be given a permit that allows them to carry a concealed weapon outside the home for the purpose of self-defense.
Unlike the recent case, NYSRPA v. City of New York which involved New York City's prohibition on allowing the transport of city-licensed handguns out of the city limits even unloaded and in locked containers, there is no chance that New York will move to change its carry laws, since doing so would mean the end of the state's may issue system.
The Supreme Court agreed the hear the case just a month after the Ninth Circuit Court of Appeals ruled that there is no right to bear arms outside of the home. The courts for the First, Second, Third and Fourth circuits have also found state may issue restrictions on the carry of firearms constitutional, but they have not gone so far as to completely re-write the Constitution.
On the other hand, the Seventh and D.C. circuits have ruled that subjective requirements for issuing carry permits such as New York's "proper cause," "heightened need" or other formulations that can allow public officials to deny permits to carry a firearm in public are unconstitutional. That creates a split between the various federal circuits, and poses a question of just how much the Second Amendment can be restricted under the guise of "longstanding regulations" mentioned in the Supreme Court's rulings in Heller and McDonald.
Gun Rights Groups Praise Decision to Take Case
The Second Amendment Foundation's Executive Vice President Alan Gottlieb expressed optimism that the case would provide a win for citizens not just of New York, but other states that still have may issue regimes.
“The Second Amendment protects an individual right to not only keep arms, but to bear them,” Gottlieb observed. “SAF has several right-to-carry cases filed which include challenges to restrictive laws in New Jersey, Maryland and New York City. A favorable ruling in this case will almost certainly impact those and other cases.
“The entire gun rights community has waited for many years for this news,” he added. “A right that exists only in one’s home is not a right at all. We do not limit the right of free speech, or freedom of the press, or the practice of one’s religion, or the right to legal counsel just to someone’s residence. And ultimately, that’s what we’re talking about, constitutionally-protected fundamental rights.”
The head of the National Rifle Association's Institute for Legislative Action, Jason Ouimet, echoed the sentiment.
“The Court rarely takes Second Amendment cases. Now it’s decided to hear one of the most critical Second Amendment issues. We’re confident that the Court will tell New York and the other states that our Second Amendment right to defend ourselves is fundamental, and doesn’t vanish when we leave our homes.”
The Firearms Policy Coalition was slightly more reserved in their optimism.
“The Supreme Court’s taking this case is an encouraging sign that it may begin to address the scope of the right to bear arms outside of the home, as well as the mode of analysis that lower courts should apply when reviewing Second Amendment cases,” said Adam Kraut, FPC’s Senior Director of Legal Operations. “As we argued to the Court in our brief, it is time to restore the Second Amendment’s first-class right status and put an end to lower courts’ unfavorable treatment of this fundamental human right.”
The question presented to the court
Some Pro-Second Amendment court watchers have voiced some concern over the way the Supreme Court subtly reframed the case before them when they agreed too hear the case.
The question as presented by Paul Clement, representing the pro-Second Amendment side, was:
Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.
The question the Supreme Court declared that it would consider was:
Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.
Constitutional law professor Josh Blackman, blogging at the Volokh Conspiracy, noted that the reframing of the case may be for good or ill.
Ultimately, I am conflicted about this grant. Part of me should be ebullient that the Court finally granted a real gun case. Yet, this strange rewriting of the QP has tempered my enthusiasm. I am jaded after thirteen years of being burned in Second Amendment cases. This grant may be the last time a nine-member Court decides a Second Amendment case. Any punt here will sweep Heller to what Justice Scalia called the "the dustbin of repudiated constitutional principles."
Restricted Arms' take
We here at Restricted Arms are cautiously optimistic that we will eventually get a ruling that effectively strikes down the heightened requirements from the few remaining "may issue" states. A more wide ranging ruling that addresses the standard of review when it comes to Second Amendment-related regulations will likely have to wait for another case.
The way the question before the court has been rephrased seems to take off the table any consideration of the potentially onerous additional requirements that might be made for carry permit applicants in the wake of the Court's ruling. We could see the state of New York be required to issue carry permits to any non-prohibited person who requests one for self-defense, but then pile on excessive licensing fees, training requirements, etc., that could still create such a high barrier to exercising Second Amendment rights that it would, once again, effectively be limited only to the wealthy or well-connected.
A worst case scenario in this case would be if the Supreme Court were to follow the Ninth Circuit's lead in the Peruta case. In that case, an 11 judge panel of the Ninth Circuit ruled that there was no constitutional right to carry a weapon concealed.
The court ignored petitioners pleas that what they were really asking for was some form of carry, and that the original Ninth Circuit panel—where Second Amendment advocates won—settled on concealed carry precisely because the State of California had chosen to outlaw open carry. It wasn't until last month that the Ninth Circuit made clear what many had accused it of five years earlier. That it was reading bear out of the Second Amendment.
While unlikely, it's possible that the Supreme Court could effectively punt on the issue by ruling along similar lines; that the Second Amendment doesn't acknowledge a right to concealed carry. This would tacitly ignore the fact that New York doesn't allow open carry, leaving Second Amendment advocates to file another lawsuit asking specifically for open carry and have it wind its way through the courts for another 5-10 years.
At that point, there might be a liberal majority inclined to overturn Heller altogether, whether through the retirement or death of conservative judges or the packing of the court by liberals in congress.
The best case scenario is that "shall issue" concealed carry permits become the law of the land, with various other restrictions and hurdles litigated down the line. What is certain is that we are unlikely to see a ruling that addresses the neutering of the Second Amendment at the lower courts and in certain state legislatures and lays out the standard of review for Second Amendment jurisprudence.
The threats by liberal legislators to punish the court should it rule the wrong way NYRSPA v. City of New York and efforts by many on the left to do what President Joe Biden, as a senator, called a "bonehead idea" and a "terrible, terrible mistake"—court packing—have shown that there are some erstwhile conservatives (*cough* John Roberts *cough*) on the court that fear the legislative and executive branches and are tempering certain rulings on hotly contested subjects to appease politicians, the constitution's actual text be damned.
Second Amendment supporters should remember the old Mel Brooks song from "The Twelve Chairs."