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By Brad Palumbo

In a landmark 2010 decision, the Supreme Court ruled that in addition to the federal government, states must also respect the public’s individual constitutional right to bear arms. Yet the high court has neglected to take any more major Second Amendment cases in the decade since that would have further clarified the scope of this ruling, leading conservative Justice Clarence Thomas to dub the Second Amendment a “disfavored right.” As a result, many states have found ways to work around Supreme Court precedent and drastically restrict the ability of law-abiding people to carry firearms to protect themselves.

Yet, this could all soon change.

That is, if the Supreme Court makes the most of a case currently on its docket. The justices heard oral arguments on Wednesday in New York State Rifle & Pistol Association Inc. v. Bruen, a case that affords the court the opportunity to strike down state laws that are designed to, in practice, all but erase citizens’ constitutional right to bear arms outside the home. At question is New York’s process for granting concealed carry permits, which allow citizens to carry a firearm in public.

“The New York law at the center of the case … requires anyone who wants a license to carry a concealed handgun outside of the home to show ‘proper cause’ for the license,” SCOTUSBlog reports. “Courts in New York have defined ‘proper cause’ to require applicants to show a special need to defend themselves. For instance, a person who has been the target of recurrent physical threats likely would qualify. But a general desire to protect oneself or one’s property is not enough to obtain an unrestricted license to carry a concealed handgun.” (Emphasis mine.)

Similar laws are on the books in many other states such as California, Maryland, Massachusetts, New Jersey, and Hawaii, per SCOTUSBlog. Essentially, they allow government officials to decide who “really needs” to be able to exercise their Second Amendment rights and who doesn’t. Even living in a high-crime area doesn’t suffice in New York. Many, including the plaintiffs suing New York in the case, who pass a background check and simply wish to exercise their rights are not fully allowed to do so merely because some government bureaucrat says so.

To state the obvious, that’s not how constitutional rights are supposed to work. We would never accept a regime that required arbitrary government permission to exercise free speech, for example.

These state laws deprive millions of their lawful ability to defend themselves. (Firearms are used in self-defense somewhere between 500,000 to 2 million times per year .) So, too, these laws disfavor those without the connections and power to lobby successfully for permit approval. In an interesting twist, a coalition of black attorneys filed a brief in this case arguing that the New York law leads to minorities being unfairly punished for peacefully exercising their Second Amendment rights.

“The incorporated Second Amendment affords the people ‘the right to keep and bear arms,’” they write. “New York’s licensing regime does the opposite. It deprives everyone of that right, only returning it to those select few who manage to first secure a firearm license from the police. As a result, each year, we represent hundreds of indigent people whom New York criminally charges for exercising their right to keep and bear arms.”

“For our clients, New York’s licensing regime renders the Second Amendment a legal fiction,” the attorneys conclude. “Worse, virtually all our clients whom New York prosecutes for exercising their Second Amendment right are Black or Hispanic. And that is no accident.”

Based on Wednesday’s arguments, it seems that at least some of the Supreme Court’s conservative justices understand the fundamental injustice at play here.

“Why isn’t it good enough to say, ‘I live in a violent area, and I want to defend myself’?” Justice Brett Kavanaugh asked. He said requiring subjective permission from a government official “seems inconsistent with an objective constitutional right.”

Kavanaugh is on to something. This case offers the Supreme Court, with its new conservative majority, the opportunity to do the right thing after years of inaction. The justices should issue a landmark ruling that stops states from enacting these kinds of constitutional-workaround policies and forces them to respect our Second Amendment rights. Until they do, the constitutional rights of millions will remain largely a “legal fiction.”

A version of this article originally appeared in WEX.

Brad Polumbo (@Brad_Polumbo) is a libertarian-conservative journalist and Policy Correspondent at the Foundation for Economic Education.

This article was originally published on FEE.org. Read the original article.

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43 COMMENTS

    • The drums can’t be beaten loud enough or long enough. The evil side does claim it’s victories, after all. Sleepy Joe sleeps in the White House, does he not?

      I’m watching the Rittenhouse trial closely. As we all know, sometimes, the dragon wins. The left will happily eat Kyle alive, if the jury is intimidated by death threats.

      At age 65, I’ve watched the 2nd take a beating almost all my life, starting with the Brady bill. I’m hopeful every time the Supreme Court hears a 2nd amendment issue, but I’m accustomed to defeats. The current Supreme Court offers hope, but only hope. There are not 6 justices adamantly in support of 2nd amendment rights, certainly not 7, 8, or 9. We could be blindsided again.

  2. The Foundation for Economic Education (FEE.org) does an outstanding job helping to educate people about individual liberty and economic freedom.​ I highly recommend The FEE Daily Newsletter- it clearly and succinctly says what needs to be said. Check it out.

    • If a law wouldn’t be allowed when applied to voting rights then it damn well doesn’t hold water when tied to the second.

      • Gun Control in NY is another thing that exposes the democRat Party lie that “Racism’ was limited to the South or “Dixiecrats.” Gun Control is a History Confirmed Racism and Genocide Based Agenda whether Gun Control is in the North, South, East, West or worldwide. There is simply nowhere for democRats to run and hide from Gun Control race based atrocities. That is unless Gun Control History Illiteracy provides cover for them.

        The democRat Party relies on crime and uses the acts of criminals to backdoor butcher The Second Amendment Rights of law abiding citizens…I.E. NY. The Second Amendment is their target, it always has been and always will be. The criminal misuse of firearms, bats, knives, vehicles, etc. is in a concrete category all its own. The Second Amendment has its very own concrete category too in The Constitution of The United States.

        And what else has assisted the democRat Party with their Gun Control goals? That would be gun owners who are closet bigots, if they talk long enough it surfaces. And then there are outhouse lawyers who have never taken the time to verify if their assumed definition of “Gun Control” is correct. Instead they post a Eureka Moment based on states rights that somehow concludes the Gun Control definition residing in their mind is, “Perfectly Constitutional.”

        With such rampant stupidity going on among so called gun owners it makes it difficult for those pulling the wagon to win for losing.

  3. “We would never accept a regime that required arbitrary government permission to exercise free speech.”

    No? Then how do you explain our willingness to use Facebook, Twitter, Google, YouTube, et al.? These companies are engaged in an aggressive censorship campaign against gun owners and anyone who espouses wrongthink. They censor and suppress speech at the behest of the current administration and its cronies. We put up with it because their products are convenient, entertaining, occasionally useful, and quite literally addictive.

    I hate to break it to y’all, but we absolutely do accept arbitrary, politically motivated, and often government requested infringement on our 1st amendment rights. We are complicit in it, in fact. Question is: what do we do about it?

    • I never have used Facebook or Twitter but did use Google early on. Watched a few videos on YouTube but am not a subscriber and don’t buy anything from Amazon. I even quit drinking Coke when they got all stupid about Georgia voting laws…

    • napresto,

      You listed private companies who operate their services as they see fit. That gives them rationale to claim that they can censor speech. (Constitutional limitations by-and-large only apply to governments, not private companies.)

      Don’t get me wrong: I despise Big Tech censorship. And I am equally flummoxed about how to eliminate censorship. This controversy is extremely ugly because it pits autonomy (a good thing) against free speech (a good thing). I don’t see an easy/simple solution.

      The best that I have imagined–similar to others–is alternate private platforms which do not censor speech. In case it isn’t obvious, that is an enormous undertaking. Perhaps even more problematic, there are fairly simple and powerful ways for entrenched Big Tech to render alternate platforms (which do not censor speech) largely unreachable and/or inoperable.

      • The way to deal with an addiction is to find a way off of it. Transferring an addiction to something else isn’t a productive way to end up somewhere good.

      • All true. I would note, however, that most of the current tech oligarchy monolithically support the left, censor to enable the left, donate to the left, and expect in-kind returns when the left is in power. Leftists, when they are in power, do absolutely lean on the information cartel to serve their ambitions and manipulate or suppress free speech in various ways. So this isn’t JUST a matter of private entities doing things they are free to do, but that we don’t like. I agree, though, that the ultimate answer is more and freer speech, difficult as that may be to achieve. At the same time, I do wonder why some of these companies have not faced anti-trust consequences for their monopolistic business practices.

  5. Regardless of what SCOTUS decides those states will still find a way to stifle concealed carry by the commoners. They can just make ALL public spaces and transportation “gun free” zones and give the backing of the law to any private entities that want to be “gun free” as well. They can make it impossibly onerous or too expensive. There are hundreds of ways to discourage the little people from attempting to procure a concealed carry permit or to purchase a handgun…

    • They can try but that won’t fly. There are a fair number of cases where municipalities have,,mostly unsuccessfully, tried to ban carry in public parks. It will not fly on city streets. Enclosed venues such as sports arenas, concert halls, and public buildings (city halls, jails, police stations, court houses) will probably pass scrutiny, but not much else.

      • Public transport will be a battle, but one we could prevail.

        Like the subway, for example. Once in a railcar underway, there is no way to flee attack. There can’t be a cop in every railcar, and cameras are constantly being destroyed…

  7. New York won’t backdoor the people, it will be more brazen than that. Unless you’ve lived in NYC, you have no idea how insane the politicians are, and most of the people are even more demented in their unconditional support for every anti-freedom law and regulation possible. Generations of public education have really paid off for New York’s Stalinists.

    Oh, well. If god did not want them sheared, he would not have made them sheep.

    • “Unless you’ve lived in NYC, you have no idea how insane the politicians are, and most of the people are even more demented in their unconditional support for every anti-freedom law and regulation possible.”

      Preach it, Brother Ralph.

      They will still do everything they possibly can to fvck with gun owners, and will expend every effort to do so.

      My top bucket list item is to legally walk through Times Square with my LCR in .357 in my pocket, but I doubt I will be able to in my remaining lifetime…

      • Lots of people walk through Times Square with pistols tucked in their waistbands. Legally? No, but nobody cares about laws in NYC.

        • “Legally? No, but nobody cares about laws in NYC.”

          Touche’.

          Laws are only enforced when politically-expedient… 😉

    • Been to NYC once, and that was enough. I do hope those few people there who have retained their sanity will be able to walk the streets armed to protect themselves. I do suspect that quit a few bad guys will take the final dirt nap when SCOTUS forces them to go shall issue. After a few months violent crime will trend down sharply and safer property crime will go up a little.

  8. All you gotta do is show who gets carry permits broken down by race. Then show who gets guard protection, either government provided or privately provided, also broken down by race. Everyone can then see how the current gun control regime is racist. And who is in favor of the current gun control regime?

      • “i prefer one naked barrett to another.”

        A peek under those robes would put a smile on my face, a spring in my step, a song in my heart, and a *snicker* on my lips, in a heartbeat… 🙂

  10. The Court will play politics and give New York a way around their ruling so they will still be able to deny most carry permits. You can take that to the bank.

    • “…so they will still be able to deny most carry permits.”

      The same way they do now in ‘issuing’ ownership ‘permits’, but on steroids.

      It’s going to be a combination of joyous and infuriating to watch go down.

      Pop the corn (with butter, salt, and a hint of black pepper) and let the battle for freedom begin… 🙂

    • I disagreee. I think they will require shall issue but will not rule on the extent to which the State/City can regulate the places where concealed carry is allowed, since that issue is not before them. The best we can hope for is that the Court will set down specific guidelines courts are to follow in assessing restrictions on “time, place and manner”.

    • Dacian, You might be right. But don’t bet the farm. Remember the Heller, McDonald and Wren decisions? This could be a much a landmark as those three.

  11. Don’t know why so many are putting their hopes on this case. I read that SCOTUS only took the case as along as the verdict applies only to the plaintiffs, not as a general precedent.

    • The New York State Rifle & Pistol Association case represents the once-per-decade foray by SCOTUS into the scope and meaning of 2A. While I’m not expecting a sweeping opinion, I’m also not expecting SCOTUS to duck the obvious issues. If that’s what SCOTUS wanted to do, it would have simply denied cert.

  12. While I’m hopeful for the current case the notion that this will stop “back door repression” is laughable.

    There are numerous other methods for that already being ramped up in other areas and they’ll simply be brought to bear on the 2A. They’ll use the same essential formula that they’re using on energy right now and they’ll get what they want IRL even if they lose on paper.

    • They will make the process so difficult and onerous, someone will just give up trying.

      How long until you sit for the bar exam?

      • A “difficult and onerous” process would be on the “good” end of things.

        If I was to sit for the bar exam it would be for shits and giggles just to see what happens and I would never practice law. (Though target practice on lawyers might sound appealing on certain days.) I have zero interest in practicing law nor going to law school.

        The determination I have to make early next year is if I go back to data analysis, which would be a royal PITA since I have to restart from scratch as well as retake (and pay for) the entrance examination process or if I continue into the graduate level of the program I just completed this past summer, which is MCDB, where I can bypass the bullshit since I have three letters of rec within the department and a 3.8GPA.

        Of course all of that would be predicated on the country not coming apart at the seems in the next 8 months, which I put at 50/50.

        Regardless, I’m not that long on gun rights at this point because, IMHO, the 2A people are, quite frankly, mostly retarded and going to have circles run around them on other fronts just as they have on the Commerce Clause and it’s not worth explaining this to them again and again and again.

        Win all you want on the 2A. It won’t matter if you lose elsewhere, which I think we already did.

    • Trying to circumvent a SCOTUS ruling by other methods is the same as directly not abiding by or ignoring a SCOTUS ruling. So although there may be “other areas and they’ll simply be brought to bear on the 2A” its all going to be trying to circumvent if the ruling is “nope, you can’t do that and its unconstitutional.” The key here is denial of the right, simply doing it in another fashion doesn’t mean it doesn’t circumvent the ruling.

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