The Supreme Court won’t officially begin considering whether or not to accept New York State Rifle & Pistol Association vs. Cortlett, which challenges New York’s carry laws, for a few more weeks, but the amicus briefs in support of that lawsuit are already arriving on the Court’s doorstep and one of the latest legal briefs has the backing of nearly half of the Attorneys General in the United States.
In their brief, primarily written by the offices of Arizona Attorney General Mark Brnovich and Missouri AG Eric Schmitt, the AGs argue that the collective histories of the 23 responding states demonstrates that “subjective-issue handgun permit regimes, such as N.Y. Penal Law §400.00, are unconstitutional because they impose state-created, subjective conditions upon the exercise of a fundamental constitutional right.”
The Amici States emphasize two reasons that this case warrants the Court’s review. First, empirical data and the States’ experience with objective-issue regimes demonstrate that these subjective-issue regimes undermine the very public-safety purposes that they purport to advance. Citizens that receive permits are significantly more law-abiding than the public at large, and studies link objective-issue regimes with decreased murder rates and no rise in other violent crimes. Public safety is also increased at the individual level when citizens carry for selfdefense and respond to a criminal attack with a firearm; these defensive gun uses leave the intended victim unharmed more frequently than any other option and almost never require firing a shot.
Second, the Court should grant review to restore the original public meaning of the Second Amendment. In 2008, this Court recognized that the original meaning of the Second Amendment includes the right of law-abiding citizens to keep and bear weapons in self-defense. Yet thirteen years later, many lower courts have largely ignored the Amendment’s original meaning, instead adopting interest-balancing tests that allow legislatures to encroach on this fundamental right. These courts employ interest balancing to favor a sense of security over liberty. This is backwards: liberty ensures security. The Founding generation knew this all too well, and they enshrined the right to bear arms in their constitutions to keep it safe, not just from kings, but from legislatures as well. The widespread adoption of judge-made, interest-balancing tests has introduced incoherency into the jurisprudence of the Second Amendment and undermined the liberty that the Amendment guarantees. The Court should grant certiorari to reaffirm the original public meaning of the Second Amendment.
As the brief points out, 42 states currently have a “shall issue” system in place when it comes to the issuance of concealed carry licenses. Only a handful of states like New York, California, New Jersey, and Massachusetts still maintain a subjective-issue policy that allows issuing authorities to deny applicants their right to bear arms outside of the home because the applicant hasn’t demonstrated “good cause” or a “justifiable need,” or because those authorities have simply decided that an applicant isn’t “suitable” to exercise their Second Amendment rights, even though they’re legally eligible to do so.
There has not been a single state in the Union that has moved backwards to a subjective-issue standard after adopting “shall issue” policies, which is a pretty good sign that these laws aren’t generally controversial or counterproductive to public safety. The AGs also correctly note that concealed carry licensees are more law-abiding than the general population, at least based on arrest and conviction rates.
Most importantly, however, the Attorneys General make the case that the Second Amendment clearly protects the right to bear arms for self-defense outside of the home.
The right to bear arms pre-dates our written Constitution, and the Second Amendment’s text indicates it “is not a right granted by the Constitution.” It descends from our English heritage, after the abuses of the Stuart Kings who used “select militias loyal to them to suppress political dissidents, in part by disarming their opponents.”…
Reviewing this history of the original public meaning of the Second Amendment, Heller made clear that the central component of the Second Amendment is the right to self-defense when confrontation arises. The two circuits to employ this historical analysis have both concluded that “carrying beyond the home, even in populated areas, even without special need, falls within the Amendment’s coverage, indeed within its core.” Justice Story observed that “[o]ne of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.”
Just as Heller rejected the argument that the Second Amendment only applies to organized militias because it “guarantees a select militia of the sort the Stuart kings found useful,” this Court should reject the contention that the right to bear arms in self-defense is confined to the home, and restore the right to bear arms to its original public meaning.
If you’re a Second Amendment legal geek like me, you can read the brief in its entirety here, and I’d encourage folks to do so. It’s not particularly long and while it’s written for a legal audience it’s easily understandable, even for dummies like me without a law degree.
By the way, there are three Republican Attorneys General who did not sign on to the amicus briefs; the Attorneys General of New Hampshire (who was just appointed to her position a couple of weeks ago by Gov. Chris Sununu), Wyoming, and Tennessee. I’ve reached out to the AG’s office in Wyoming and Tennessee to get some information on why they aren’t signatories to the amicus brief, especially given the strong support for the Second Amendment in each state.
Now, before anybody jumps to conclusions and starts calling for the repeal of these Attorneys Generals, note that I’m not suggesting that any of them are secret gun grabbers in disguise simply because their names aren’t on this amicus brief. There may very well be legitimate reasons why they are not a part of this effort, and hopefully I’ll be able to write a followup with explanations from both Wyoming Attorney General Bridget Hill and Tennessee Attorney General Herbert Slatery in the very near future.
Wyoming Attorney General Bridget Hill responded to my email with the following comment:
You are correct that Wyoming and I are in strong support of the Second Amendment. Unfortunately, in this instance, I was not made aware of this amicus brief in time to sign on. The request for review for this brief was not sent to the individual that typically reviews these matters for me. Thus, there was a delay and we were not able to join in time. I will say, it gives me some comfort to know that the brief was well supported by other states and will be considered by the Court in making their decision of whether to grant the petition. Additionally, it gives me comfort to know that if the Court does grant the petition, I will have another opportunity to join.
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