Now that the Supreme Court has taken a case dealing with the right to keep and bear arms, we’re in for a little bit of a lull, since the Court won’t actually hear oral arguments in New York State Rifle & Pistol Association v. Corlett until the fall. Behind the scenes, though, there’s still a lot going on, including the drafting of amicus briefs on both sides of the issue that will flesh out the arguments in favor and in opposition to New York’s “may issue” licensing regime for those wanting to carry a firearm for self-defense in public.
On today’s Bearing Arms’ Cam & Co, two attorneys whose names will be on a couple of those upcoming amicus briefs join me to discuss the new carry case, and why the opinion that will be handed down by the Court next year has the potential to reshape the legal landscape far beyond the issue of the right to carry outside the home.
Chuck Michel and Stephen Halbrook have been involved in Second Amendment litigation for decades, but the pair have a new project in the 2nd Amendment Law Center, which will not only be involved in legal challenges to gun control laws around the country but will also work to educate the public about the importance of the right to keep and bear arms and why it must be protected.
Both Michel and Halbrook say they’re excited about the SCOTUS case, and they’re not overly concerned about the fact that the Court has reframed the question posed by the plaintiffs to more narrowly address the issue of New York’s licensing laws instead of answering the broader question about whether or not the Second Amendment actually protects a right to bear arms in self-defense outside the home. Halbrook tells me that, because New York bans the practice of open carry outright, the Court may find it impossible to address the issue of concealed carry in the state without also discussing the right to bear arms more generally.
Michel, who’s also the executive director and general counsel of the California Rifle & Pistol Association, says he’s also interested to see what the Court does with the case of Young v. Hawaii, which was recently decided by the Ninth Circuit Court of Appeals. In their opinion, the appeals court ruled that the Second Amendment doesn’t protect a right of the general public to openly carry a firearm, and since the Ninth Circuit has previously ruled that the Second Amendment doesn’t protect the right to carry a concealed firearm either, the judges on the West coast have in essence written the right to bear arms out of the Second Amendment entirely.
Michel says there are several options that the Supreme Court could take regarding Young; they could incorporate the case into NYSPRA v. Corlett (which Michel believes is unlikely), they could grant cert in the case but hold it until the decision in the New York case is issued, or they could simply pass on the case. If that happens, Michel says he and the 2nd Amendment Law Center would quickly file a new lawsuit once the Court’s opinion in NYSPRA v. Corlett is handed down.
Perhaps most importantly, however, both attorneys are of the opinion that the Court will use the New York case as an opportunity to lay out the legal test that should be used when determining whether or not a gun control law violates our constitutional rights. Since the Heller and McDonald decisions a decade ago, most courts have adopted a balancing test; weighing the individual right to keep and bear arms against the state’s authority to pass laws in the public interest.
Unfortunately, far too many judges have decided that virtually any and all gun control laws are just fine, as long as the state asserts that the laws are needed to protect the public safety. Halbrook and Michel believe that that SCOTUS will lay out a new path for the courts to take when considering the constitutionality of gun control laws; one based on the history, tradition, and text of the Second Amendment. That would be bad news for gun control activists, but a hugely positive development for those of us who want to see our right to keep and bear arms taken seriously by our legal system.
Be sure to check out the entire conversation with Michel and Halbrook in the video window above, and for true Second Amendment law nerds, pick up a copy of Halbrook’s timely new book, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class?