The Supreme Court is keeping a case dealing with the Second Amendment for at least one more week. In the orders from last Friday’s conference that were released on Monday morning, the Court didn’t deny cert in New York State Rifle & Pistol Association vs. Bruen (originally NYSRPA v. Corlett), but it didn’t accept the case either. That means the case is most likely headed for relisting and will be taken up again in conference this Friday.
The case asks a very simple, yet incredibly important question when it comes to the Second Amendment:
Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.
Under New York law, licensing authorities in the state have broad discretion to approve or deny applicants, and anyone wanting to carry a firearm must demonstrate a “proper cause” in order to be approved. Many of the licensing authorities (in most cases sheriffs or judges) in the state don’t view self-defense or a right to bear arms as a good enough reason to approve a license, and the state’s courts have ruled that a “generalized desire to carry a concealed weapon to protect one’s person and property does not constitute ‘proper cause’”, even if the applicant has met all of the other statutory requirements. As a result the average citizen has no way to lawfully exercise their right to bear arms outside the home for self-defense (New York does not permit the open carrying of handguns).
The Second Circuit Court of Appeals has upheld New York’s restrictive policies, arguing that, since the Heller decision which struck down Washington, D.C.’s ban on handguns, stated that the core purpose of the Second Amendment was to protect the right of self-defense inside the home, the right to keep and bear arms is greatly diminished once you set foot outside your door. The Second Circuit acknowledged that “New York’s proper cause requirement places substantial limits on the ability of law-abiding citizens to possess firearms for self-defense in public,” but ruled that the Second Amendment rights of residents aren’t infringed by the state’s restrictions.
The Ninth Circuit has also recently declared that the Second Amendment doesn’t protect a right to bear arms, while the D.C. Circuit Court of Appeals and the Seventh Circuit have ruled otherwise. The D.C. Circuit struck down a “justifiable need” requirement similar to New York’s on Second Amendment grounds, but the city’s politicians decided not to appeal that decision to SCOTUS after gun control activists begged them to take the loss and prevent the Court from having an opportunity to weigh in on the dispute.
It’s been over a decade since the Supreme Court last heard a major case dealing with the Second Amendment. In 2010, SCOTUS ruled 5-4 in a case called McDonald v. Chicago that the Second Amendment protects the right to keep and bear arms from state and local infringements as well as unconstitutional actions by federal officials. Since then the Court has turned away a number of challenges dealing with the right to carry, the right to own modern sporting rifles, bans on ammunition magazines that are in common use, and a number of other Second Amendment issues.
With the confirmation of Justice Amy Coney Barrett to the Court, however, 2A activists were hopeful that there would be a clear majority of justices who recognize the fundamental importance of the Second Amendment, and that the Court’s hesitancy in accepting cases dealing with the right to keep and bear arms would fade away. NYSPRA v. Bruen is the first major Second Amendment case to reach the Supreme Court since Barrett took her seat, but the Ninth Circuit’s decision in Young v. Hawaii is expected to go before the Court for consideration in the next few weeks as well.
It could be that there’s continued debate among the more conservative wing of the Court as to which case would be the best vehicle to address the right to carry. There’s also the possibility that SCOTUS has decided that it will or will not accept NYSPRA v. Bruen for whatever reason, but one or more justices are writing a dissent from the decision that has not yet been completed. It’s not uncommon for a case to be heard in multiple conferences before a decision is reached and publicly announced, but some gun owners will undoubtably see this as another sign that the Court is still not willing to wade in on Second Amendment issues, even with Justice Barrett now on the bench.
I’m not willing to go that far, but if the Court were to ultimately reject both NYSPRA v. Bruen as well as Young v. Hawaii, I’d have to agree. We’re not there yet, however, and I still have some confidence that the Supreme Court will decide to accept one of the two right-to-carry cases. I’d prefer the Court act sooner rather than later, but we’re going to have to wait at least another week to see if SCOTUS will take up the issue of whether or not the Second Amendment protects the right to bear arms in self-defense outside the home.