By Cody J. Wisniewki
Sometimes you feel overwhelmed in a good way.
Last week brought an avalanche of amicus briefs in the major Supreme Court gun rights case of New York State Rifle & Pistol Association v. Bruen, which is expected to be the Court’s most important Second Amendment case since the Heller and McDonald decisions more than a decade ago.
Gun control advocates first began getting nervous about this case in the spring, when the Supreme Court agreed to hear the merits of the case under its original name of NYSRPA v. Corlett.
Nearly four dozen briefs were filed in support of NYSRPA’s challenge to New York’s unconstitutional gun control laws. Contributors are, literally and figuratively, all over the map — Asian and African American groups, academics, dozens of states, and many more congressmen and senators.
Never let anyone tell you that the movement for gun rights is marginal, or confined to one demographic.
As you may recall, the NYSRPA case concerns the state of New York’s ban on bearing arms outside the home — with narrow exception for those who can show “proper cause.” This means individuals must prove to New York state officials that they are not merely ordinary citizens concerned for their safety, since that is not a good enough reason for a permit in New York’s view.
New York’s licensing scheme is a complete inversion of the Second Amendment: taking the people’s natural, constitutionally protected right, and turning it into an exclusive privilege for a select few.
A correct application of Heller and McDonald would have quickly put an end to such a law. Instead, many lower courts have twisted a portion of the Heller opinion to support the idea that firearms rights can still be radically curtailed outside the home.
In terms of scholarship and argumentation, there are countless ways to dismantle a disarmament scheme like New York’s. Our movement rose to the occasion last week, with the barrage of briefs supporting NYSRPA and the rights of all New Yorkers — and all Americans.
Two of my favorites came from professors of Second Amendment Law, as well as from a group led by public defenders and the Black Attorneys of Legal Aid.
The professors’ brief is an excellent historical survey. They show that the public carrying of arms is a deeply rooted American tradition. It was protected under English law, and intentionally given even broader protection under the U.S. Constitution. Anglo-American history does not support the gun control agenda.
In today’s highly charged political climate, many people would not expect equally strong firearms advocacy from the Black Attorneys of Legal Aid and several groups of public defense attorneys. But for those of you paying close attention, this support is obvious—especially given the racist roots of gun control, and the ongoing harm it does to poor and diverse populations.
Their brief brings attention to a tragic reality: people of all backgrounds are often detained and threatened by New York police, jailed for long periods, and branded as “violent felons” for life, merely for exercising their constitutionally protected right to bear arms.
My own organization, MSLF’s Center to Keep and Bear Arms, also weighed in on NYSRPA. The Center’s brief focused on taking down a historical misconception put forth by gun control activists: the idea that gun laws in the early northern U.S. (often called the “Massachusetts model”) offer support for modern laws like New York’s, broadly restricting public carry.
In reality, research demonstrates that while restrictions were occasionally placed on some individual public carriers who were seen as breaching the peace, these restrictions were only applied in an individualized manner, and were the exception—while the right to carry was the rule.
There is good reason to hope that the Supreme Court will uphold that right after it concludes briefing and hears oral argument on NYSRPA in the upcoming term, likely in November, 2021.
After all, there is simply no solid constitutional argument against what the NYSRPA plaintiffs — citing the D.C. Circuit — argued in the District Court:
The law-abiding citizen’s right to bear common arms must enable the typical citizen to carry a gun.
Cody J. Wisniewski (@TheWizardofLawz) is the Director of Mountain States Legal Foundation’s Center to Keep and Bear Arms. He primarily focuses on Second Amendment issues but is happy so long as he is reminding the government of its enumerated powers and constitutional restrictions.
To learn more about the Center to Keep and Bear Arms’ work and support their fight for your natural right to self-defense—from both man and tyranny—visit www.mslegal.org/2A and donate today!
I simply want to say ten thumbs up to everyone who submitted a brief. Thanks to all!
“…the Supreme Court will hold…briefing and hears oral argument on NYSRPA in the upcoming term, likely in November, 2021.”
Did we not just dance to this song over a year or so ago?
Déjà vu anyone?
And wasn’t that case delayed? And then delayed again, and again, and….
And isn’t this case holding up and delaying scores of other cases?
Perhaps the court just believes the average human life span is over a thousand years.
I wonder if this much high court chin and butt scratching would be going on if NY came straight out and wanted to bring back slave shacks, nooses, burning crosses, gas chambers, concentration camps, swastikas and every other atrocity connected to Gun Control? C’Mon Man it’s a dog and pony show.
ABOLISH GUN CONTROL NOW. How do you like those apples BAWN?
“bring back slave shacks, nooses, burning crosses, gas chambers, concentration camps, swastikas”
Rather extreme but the Democrats seem to be trying to do MOST of that..
I don’t think they ever got over LOSING the Civil War and they fought EVERY instance of making slaves and/or blacks EQUAL.
Not to be a Debbie Downer, but this is still going to be at a minimum a 5-4 decision one way or the other. There are at least 4 justices who firmly believe the 2A is a second class right, and a collective right at that. Roberts is a statist pig, so who knows which way the wind will blow him. He’s more interested in his reputation than he is in protecting Constitutional liberty. A bunch of them are elitists who are afraid of ordinary citizens and think guns are too dangerous for them to have. The only ones I have some faith in are Thomas and Alito. Kavanaugh and ACB? They’re starting to look like Roberts in channeling Souter.
I’ve never seen outhouse judicial wisdom such as yours, it was certainly a Perry Mason cliff hanger. Such wisdom must come from you being an elite toe the line gluten for punishment loving drama queen whose path repeatedly leads to nowhere.
“glutton” for punishment. “Gluten” for punishment is how you torture PETA vegans concerned about sentient wheat.
Also, he is not wrong. Although he could have expressed it better. Roberts allowed NY to engage in shenanigans and moot a case last year. I am pretty sure Roberts is at least mildly anti 2nd amendment.
“I am pretty sure Roberts is at least mildly anti 2nd amendment.”
Really?
Then why did Roberts vote for the Heller and McDonald decisions?
Yes I know and I cannot edit so tell that to my auto correct. “If” can switch to “of.” Of can be if and so on.
I could care less about roberts because his long record of stupidity speaks very loudly for him. What a pompous jerk like roberts does not acknowledge is the right of self defense is God Given otherwise God would have made us trees so we would have no choice but to stand there and watch someone like roberts chop us down.
Those who have a problem hearing the Truth About Gun Control being told must be content with risking being turned into the wood floors beneath the feet of Gun Control zealots. You know…Like Gun Control assisted in turning defenseless Jews into lampshades.
What you and ticked and you can include those in black robes cannot do or failed to do is debunk what I said about Gun Control Atrocities. Anything and everything you two have said thus far has no teeth whatsoever.
One problem with your analysis, Deer Tick, nine out of nine justices in Heller agreed that the 2A guarantees an individual right. The disagreement was as to the scope of the right guaranteed, the dissenters concluding that the exercise of the right was limited to service in a militia.
Wouldn’t it be great if their decision went something like , It says what it means and it means what it says. Full stop.
Given how Heller was mauled by the liberal circuit judges, I think not.
It would be a great day for America when courts, etc. find every bit of Gun Control null and void because…
1) The Second Amendment is one thing.
2) The criminal misuse of firearms, etc. is another thing.
3) History confirms Gun Control in any shape or form is a racist and nazi based thing.
Since when did the U.S. Supreme Court be the end of the line where deciding what rights we “serfs” are “allowed” to have? The last time I checked, we used to have three branches of government, not one. I have zero faith that these gods-in-robes will rule in favour of the Second Amendment. Roberts is too wishy-washy, and it seems like Kavanaugh is just another Roberts: Easily blackmail worthy. As for Gorsuch, I would not trust him any farther than I could throw him, either.
Nine appointed for life robes decides the fate of the United States Constitution and the country. .
.
.
Fckem
On the bright side we will finally learn whether or not the U.S. Supreme Court is a complete farce or whether it still has some integrity.
Complete farce.
All that edgimacation and they still dont know the meaning of Infringed
Webster’s dictionary of 1828:
“INFRING’ED, participle passive Broken; violated; transgresses”
So the people’s right to keep and bear arms can’t be broken or violated… But thanks to the prefatory clause specifying “a well regulated militia”, the right can be regulated as in “subject to rule or restriction” (also from Webster’s dictionary of 1828).
https://www.law.cornell.edu/constitution-conan/amendment-2
The meaning in context is “well trained.” Regulated is not used to modify arms, but militias. So nit regulated arms but trained troops. Plain language meaning based on grammatical construction.
Sea Lion sighting. Listen to him bark.
I really don’t understand why I am such a complete moron, when I continually omit from the definition of regulated (also from Webster’s dictionary of 1828) as “put in good order”.
Which is what the amendment is referring to, arms in good working order.
Well that make much more sense.
First of all, New York State does not ban the Open Carry of long guns. New York City does but the NYSRPA did not challenge either the NYC ban on Open Carry or the state’s ban on the Open Carry of handguns. The only thing the NYSRPA challenged was the “proper cause” requirement for an unrestricted concealed carry permit.
The only claim made by the NYSRPA was that the “proper cause” requirement for an unrestricted concealed carry license violated the Second Amendment as well as a derivative 14th-Amendment claim that issuing unrestricted concealed carry licenses to some people, but not to the petitioners, violated the 14th Amendment.
That’s all, nothing else.
The justices rewrote the question presented to the Court from whether or not there is a right to carry handguns in public to whether or not the denial of the two petitioners’ applications for [unrestricted] concealed carry licenses violated the Second Amendment.
Given that the question presented is on the Supreme Court docket, nobody, especially not lawyers, has an excuse for not knowing what the actual question is the justices are going to decide.
Likewise, the brief on the merits filed by the NRA lawyers is online, free for everyone to read.
Nowhere in the brief on the merits did the NRA lawyers answer the question presented. Nowhere in the brief did the NRA lawyers make the argument that either, let alone both of the petitioners’ Second Amendment rights were violated because their applications for a concealed carry license were denied.
The NRA lawyers did not even argue that some hypothetical person in some hypothetical situation has a right to concealed carry.
And the NRA lawyers certainly did not argue that the “proper cause” requirement for an unrestricted concealed carry permit is facially unconstitutional.
The brief did make some allusion to racism but the NYSRPA never alleged either that the “proper cause” requirement for a concealed carry license was racially motivated or disproportionately enforced or made any race-based claim in any form in the lower courts let alone argued that the law is racist in any shape or form.
Ask yourself, when is the last time the justices answered a question not presented to the court on a claim not made and argued in the lower courts below.
Justice Scalia wrote the majority opinion in District of Columbia v. Heller in which he said that Open Carry is the right guaranteed by the constitution and the 19th-century prohibitions on concealed carry do not violate the Second Amendment.
The four justices in the majority wholeheartedly agreed with the five justices in the majority that concealed carry is not a right and can be banned. The criticism was that the majority opinion did not explain why prohibitions on concealed carry are constitutional.
Justice Scalia’s response was there will be time enough, in future cases, to expound on the historical justifications as to why prohibitions on concealed carry, prohibitions on felons and the mentally ill from possessing firearms, and prohibitions on possessing firearms in sensitive places do not violate the Second Amendment.
The NRA and the so-called gun-rights groups as well as uncounted felons carrying concealed weapons have challenged restrictions on concealed carry.
Granting the cert petition in NYSRPA v. Bruen and rewriting the question presented to be strictly limited to concealed carry gives the justices the opportunity to expound on the historical justifications for prohibitions on concealed carry and to explicitly tell the lower courts what methodology they are to use when Second Amendment lawsuits come before them.
In short, no concealed carry for you.
There are no exceptions to “the RIGHT of the people to keep and BEAR arms shall not be infringed.” in the 2nd. amendment. And when the SCOTUS ruled the 2A applies to the States, that should have invalidated any State laws on carrying a handgun.
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