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It was in 2008—13 years ago–the Supreme Court handed down its decision in the Heller case.  Essentially, they affirmed the Second Amendment does indeed speak to an individual right, and suggested that right means Americans may keep common and usual arms in their homes.  It was a very narrow decision, leaving much, such as the “bear” part of “keep and bear” unspecified.  They did sort of suggest Americans might be able to bear arms outside their homes, and sort of suggested that strict scrutiny—the highest level of judicial deference–was the proper standard for deciding Second Amendment cases, and absolutely said states could restrict the Second Amendment for things like mental health, felony convictions, etc.  It was indeed a landmark decision, despite leaving so much up in the air.

The dissent in that case grudgingly admitted Americans have an individual right to keep and bear arms, but asserted government could restrict that right in any way it chose.  In other words, Americans have an unalienable right that has no application in their lives.  In 2010, the Court handed down the McDonald decision, which applied Heller to the states.

Since 2010, the Court has studiously refused to hear the many cases resulting from its treating the Second Amendment as a red-headed stepchild, sort of a second class unalienable, fundamental right.  Cities and states have continued to try to infringe on American’s rights, and the Circuit courts are split, with some taking the logical step of asserting “keep and bear” means American’s right to self-defense does not stop at their property lines, and others asserting various versions of Americans have no gun rights at all.  In so doing, most of those courts have adopted the Heller dissent’s logic: Americans have and individual right to keep and bear arms, but the government can infringe on it in any way it choses.

Against this legal backdrop, Americans are buying guns and ammunition in incredible quantities, so much so, throughout the country, ammunition is rare is expensive.

Smith & Wesson M&P 15

The National Sport Shooting Foundation (NSSF), the trade group for the firearms industry, reported earlier this month that there were nearly 5.5 million firearms sold in the United States in the first three months of 2021. That was up by thirteen percent from a year ago for the first quarter, and it was also the most guns sold in any three-month period since the FBI introduced its background check data system in 1999.

Finally, the Court has granted cert to a case that could decide the “bear” issue:

In New York State Rifle & Pistol Association Inc. v. Corlett, Robert Nash and Brandon Koch applied for New York licenses to carry firearms outside the home. The licensing officer denied their requests after determining that, under New York law, they had ‘failed to show ‘proper cause’ to carry a firearm in public for the purpose of self-defense, because [they] did not demonstrate a special need for self-defense that distinguished [them] from the general public.’ Nash, Koch and the New York State Rifle & Pistol Association ask the Supreme Court to take their case because the lower courts are split over the strength of Second Amendment protections outside the home.

It’s a standard blue state/city tactic: “oh, you can carry a concealed weapon if you can show “proper cause” for getting a permit, but there is no cause you can possibly show—unless you’re rich or politically connected—that we’ll consider proper, but don’t say we didn’t give you the opportunity!”  Unfortunately, the Court is signaling they’re going to decide this case as narrowly as possible, as Fox News reports:

‘The petition for a writ of certiorari is granted limited to the following question: Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment,’ the court said in an order.

The state requires license applicants to show that ‘proper cause exists’ for a person to have one. The Second Circuit Court of Appeals ruled in August that the law is constitutional.

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The Court might do nothing more than say the Second Circuit wrongly decided the case of those two New Yorkers and remand it to them for another decision.  The relevant New York law is here. 

New York is among eight states that limit who has the right to carry a weapon in public. The others are: California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island.

At The Volokh Conspiracy, Josh Blackman notes the Court rewrote what the appeal suggested was the fundamental issue to be decided:

Ruger SR1911

Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.

Blackman too thinks the Court may use its rewrite of this rational framing of the central issue as a means to write a very, very narrow opinion.

Second, the Court’s QP refers to a petitioner that could file an ‘application.’ That category of individuals would seem limited to a natural person. One of the Petitioners is the New York State Rifle & Pistol Club. Is that party a petitioner that could file an ‘application’? Or will the Court limit relief to the named parties.

In other words, might the Court simply decide the case as to the two people named and denied licenses, without extending any protection to all Americans?  These two guys get licenses, but that doesn’t mean all Americans not otherwise excluded by law—felons, the mentally ill, etc.—have a right to bear arms outside the home.  Go here for additional information on this issue.  

Third, the Court’s QP refers to ‘applications for concealed-carry licenses for self-defense.’ Clement’s QP refers to ‘ordinary law-abiding citizens from carrying handguns outside the home for self-defense.’ The Court’s question is far more narrow. It only concerns ‘concealed-carry licenses.’ Clement’s petition refers to carrying a gun more broadly outside the home. By stripping the reference to ‘outside the home,’ the Court avoids resolving a thirteen-year old mystery: w[hat] exactly are ‘sensitive places.’ Also, the Court’s question would close the door to a claim for open-carry. But why would the Court even consider this issue? New York does not permit open carry. I am nervous this QP is setting up a punt: a remand to consider whether permitting open carry would be consistent with the Second Amendment. Specifically, can New York prohibit conceal carry if it permits open carry? And by the time the case returns, there will be 17 Justices and the Court can deny review.

Let us, gentle readers, be cynical for a moment.  There are now sufficient constitutionalist judges on the Court that Chief Justice Roberts could not longer prevent the Court from granting cert—it takes four votes—for a Second Amendment case.  Remember, various senators, in August of 2019, directly threatened the Court with packing if it dared rule against the D/S/C anti-liberty/gun line.  Court packing remains a very real threat.  Does the Court do its job, or does it, as Blackman says, “punt” in the hope D/S/C thugs, in Congress and out, can be appeased?  A great deal of mischief could be unleashed in this case, leaving Americans, in the full exercise of Second Amendment liberties even worse off than they are under the weak protection of Heller. 

Unless the court rules Americans have an unalienable right to carry firearms outside their property, wherever they are, for all lawful purposes, they retain no more right to self-defense than that recognized by Heller.  Their lives have value only on their own property, within their own walls.  Absent such a clear decision, anti-liberty/gun cracktivists in Congress, and on the bench, would only be encouraged to push for even greater infringements.

Fourth, Clement’s QP refers to ‘citizens.’ There is no corresponding language in the Court’s QP. Did Justice Sotomayor object a right that would be limited to citizens? After all, the Second Amendment does not apply to citizens. It refers to the ‘Right of the people’ (Judge Wood adopted that reading of the Second Amendment for the Seventh Circuit). And the Due Process Clause, which the McDonald plurality used for incorporation, refers to persons, not citizens. Yet, Justice Thomas’s controlling (?) McDonald concurrence relied on the Privileges or Immunities Clause, which is limited to citizens.

Hmm.  “Citizens” vs. “people.”  Americans vs. illegal aliens?  Criminal aliens should have all the rights of Americans, and because D/S/C states tend to ignore their crimes, even more rights than citizens?  And no, not all illegal aliens are criminals (remembering their mere presence in America is a crime).

Fifth, Clement’s QP refers more broadly to ‘ordinary law-abiding citizens.’ Again, there is no similar corresponding language in the Court’s QP. Here, the Court may not have wanted to get involved in the precise basis on the right to carry. What exactly does ‘ordinary law-abiding’ mean? Does that category include non-violent felons? The Court ducked that issue last week.

Remember, in Heller, the Court specifically said government could infringe on the rights of convicted felons, the mentally ill, etc.

Finally, the Court did not accept New York’s phrasing of the QP, which differed significantly:

‘Whether the Second Amendment prohibits New York from requiring residents who wish to carry a concealed firearm in public to have an actual and articulable need to do so.’

As if New Yorkers, where crime is running rampant, and the police have been emasculated and are fleeing in droves, need to articulate a reason for self-defense.  Merely living in or visiting New York should be prima facie reason.  At Legal Insurrection, Cory Wisniewski addresses the issue of the proper level of judicial review (it must be strict scrutiny, which is used for all other unalienable, express rights):

First, this case, like the last NYSRPA case, presents the Court with the opportunity to firmly establish the appropriate test for lower courts to evaluate Second Amendment challenges.

In 2008, when the Supreme Court decided the landmark case of D.C. v. Heller, it set forth a new standard for reviewing Second Amendment cases based on the original public meaning of the Constitution—the text, history, and tradition test.  The Court applied this same test in McDonald v. Chicago two years later.

And yet, since 2010, nearly every circuit court in the nation has failed to appropriately apply that test.  Instead, circuits opt for a two-step approach that asks the Court to determine whether the challenged law implicates a ‘core’ Second Amendment-protected right and then, if it does, to balance that right against the state or city’s ‘interests’ (an approach specifically disclaimed by the Supreme Court in Heller).

Firmly establishing the standard by which Second Amendment challenges are decided will affect every Second Amendment case in the nation.  And if the Court reiterates its text, history, and tradition test, it will do so for the better.

Why would lower courts avoid applying strict scrutiny?  Because if they do, they would have no choice but to affirm the Second Amendment means individual Americans have the right to keep and bear arms, to carry them, concealed, openly, or both, outside the home, wherever they may be.  Logically, it would also mean there would be few, if any, places carrying could be regulated or denied.  I’m sure few would argue with not carrying into prisons, for example, but D/S/Cs have much to lose here.

Should the Court do its job, D/S/Cs would have no lawful means to disarm Americans.  That would make any attempt to fully establish a tyranny much more difficult and bloody, and if current buying trends hold, there will be no less than 22 million additional guns in circulation by the end of 2021, and at least 60 million at the mid-term elections in 2022.  And no, all those guns are not being bought by gun nuts who already have “arsenals.”  We can expect, on the part of D/S/Cs, desperation unlike any we’ve seen before.  Americans, even those left of center, aren’t stupid.  They know they need to protect themselves and those they love against government and the criminals it is unleashing.

What remains is to see whether Supreme Court justices understand would-be tyrants cannot be appeased.  Of course, when one is being pressured, even threatened, by the Legislative and Executive branches of government, one’s courage might possibly—waver…