Bruen, Clarence Thomas, concealed carry, Court packing, DOJ, federalizing vote fraud, Fourteenth Amendment, Gavin Newsom, Heller, Justice Alito, Justice Breyer, Justice Coney Barrett, Justice Kavanaugh, Kathy Hochul, McDonald, NYC, President Biden, second amendment, self-defense, special places, Strict Scrutiny, Supreme Court
NYSRPA v. Bruen is the third significant Second Amendment case in American history. Heller affirmed the right to keep and bear arms as a fundamental, unalienable, individual right. The dissenting justices in that case grudgingly admitted the Second Amendment does speak to an individual, not a collective, right, but argued it has no real application in the lives of Americans. Virtually any restriction, perhaps even outright bans, would be constitutional.
Heller also held the firearms commonly used by Americans for self-defense and other lawful purposes cannot be banned, but as is common with the Court, narrowly deciding the case on the facts before it, upholding the right of Americans to keep such arms in their homes. Heller did not specifically say this, but of what use is such a right if one cannot bear arms anywhere but in one’s home? While most lower courts have acknowledge the court’s intent, some have not, and of course, blue states and cities have done their best to try to sneak around Heller, essentially arguing Americans have the right only to keep and bear some arms in their homes, not in public, where one is most likely to have to defend their life of the lives of others.
McDonald applied Heller to the states.
The issue in Bruen arose because New York City had/has a “may issue” law, which required individuals to prove they had a special interest and need– beyond the right to self-defense—to carry a concealed weapon. This law, and similar laws in blue states and cities, denies the right to self-defense with the assertion only state approved individuals have the right to bear arms outside the home. Accordingly, the only people licensed in NYC were celebrities and athletes—with the right political credentials—politicians and the wealthy, and people useful to the reigning, Democrat/Socialist/Communist political elite. As a result, criminals, already allowed to run wild, could be assured virtually none of their potential victims could be armed. Law abiding New Yorkers could also be assured gun-wielding criminals would face little or no justice for their crimes, but if they dared carry a gun to protect themselves against two-legged predators, they would have the book thrown at them.
The Court’s decision, written by Justice Clarence Thomas, amply illustrates why D/S/Cs so hate him. It’s not only scholarly, meticulously accurate and very well written for non-lawyers, it relies on the text of the Constitution, the intent of the founders/authors, and the relevant legislative history. In other words, it does not rely on emotion, race-baiting, threats of violence, and rhetoric, but the supreme law of the land. One would hope this to be the minimum standard for Supreme Court decisions.
The full decision of the court, including concurrences and the dissenting opinion, is here. I’ll provide excerpts and commentary, with the understanding I’ll surely be addressing this decision and its aftermath in greater detail, and sooner rather than later.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. ALITO, J., filed a concurring opinion. KAVANAUGH, J., filed a concurring opinion, in which ROBERTS, C. J., joined. BARRETT, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined.
From the decision:
(vi) After reviewing the Anglo-American history of public carry, the Court concludes that respondents have not met their burden to identify an American tradition justifying New York’s proper-cause requirement. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor have they generally required law-abiding, responsible citizens to ‘demonstrate a special need for self-protection distinguishable from that of the general community’ to carry arms in public. Klenosky, 75 App. Div. 2d, at 793, 428N.Y.S. 2d, at 257. P.62.
There went NYC’s law.
(c) The constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’ McDonald, 561 U. S., at 780 (plurality opinion). The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self-defense is no different. New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public. Pp. 62–63.
There went any argument about whether American’s right to keep and bear arms applies only to their homes. New York City is a poster child example of a place where “ordinary self-defense needs” have, through the malfeasance of its rulers, escalated to extraordinary self-defense needs. In that respect, NYC is a “special place” indeed.
In Heller and McDonald, we held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. In doing so, we held unconstitutional two laws that prohibited the possession and use of handguns in the home. In the years since, the Courts of Appeals have coalesced around a ‘two-step’ framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.
Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’ Konigsberg v. State Bar of Cal., 366 U. S. 36, 50, n. 10 (1961).3
There went lower court’s attempts to dance around the fundamental, unalienable, individual right acknowledged in Heller and McDonald.
Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.
If the last decade of Second Amendment litigation has taught this Court anything, it is that federal courts tasked with making such difficult empirical judgments regarding firearm regulations under the banner of ‘intermediate scrutiny’ often defer to the determinations of legislatures. But while that judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here. The Second Amendment ‘is the very product of an interest balancing by the people’ and it ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense. Heller, 554 U. S., at 635. It is this balance—struck by the traditions of the American peo- ple—that demands our unqualified deference.
In other words, strict scrutiny, the highest level of scrutiny, applies to the Second Amendment. No more weaseling around it. Second Amendment cases must be decided in the most restrictive light toward government demands and the most permissive light toward individual liberty. This is a particularly eloquent dissembling of NYC’s “we’re special” argument:
Although we have no occasion to comprehensively define ‘sensitive places’ in this case, we do think respondents err in their attempt to characterize New York’s proper-cause requirement as a ‘sensitive-place’ law. In their view, ‘sensitive places’ where the government may lawfully disarm law-abiding citizens include all ‘places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.’ Brief for Respondents 34. It is true that people sometimes congregate in ‘sensitive places,’ and it is likewise true that law enforcement professionals are usually presumptively available in those locations. But expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement defines the cat- egory of ‘sensitive places’ far too broadly. Respondents’ argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense that we discuss in detail below. See Part III–B, infra. Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department. [emphasis mine]
Here, Justice Thomas grasps the heart of the matter: NYC’s unconstitutional anti-liberty/gun laws specifically intend to hold NYC exempt from the Second Amendment, for everyone except violent criminals. Justice Thomas didn’t go into what a poor job NYC officials have done, particularly in recent years, in protecting law-abiding citizens. The decision, like Heller, does not remove from the states the ability to designate legitimate sensitive places, such as jails, courts, etc. Justice Thomas engages in a lengthy exposition on relevant history and law, and concludes with this:
At the end of this long journey through the Anglo-American history of public carry, we conclude that respondents have not met their burden to identify an American tradition justifying the State’s proper-cause requirement. The Second Amendment guaranteed to ‘all Americans’ the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions. Heller, 554 U. S., at 581. Those restrictions, for example, limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor, subject to a few late-in-time outliers, have American governments required law-abiding, responsible citizens to ‘demonstrate a special need for self-protection distinguishable from that of the general community’ in order to carry arms in public. Klenosky, 75 App. Div., at 793, 428 N. Y. S. 2d, at 257.
The constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’McDonald, 561 U. S., at 780 (plurality opinion). We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense. [emphasis mine]
This could not be more clear:
New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. We therefore reverse the judgment of the Court of Appeals and remand the case for further pro- ceedings consistent with this opinion.
From Justice Alito’s concurrence:
In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section. See post, at 1–8 (opinion of BREYER, J.). Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Post, at 4–5. Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.
What is the relevance of statistics about the use of guns to commit suicide? See post, at 5–6. Does the dissent think that a lot of people who possess guns in their homes will be stopped or deterred from shooting themselves if they cannot lawfully take them outside?
In other words: We’re the Supreme Court. We decide cases on the Constitution, not emotional appeals over public policy. That’s for politicians, not Supreme Court Justices. Perhaps, Justice Breyer, you would be happier seeking political office or becoming a pundit for CNN or MSNBC?
From Justice Kavanaugh’s concurrence:
Going forward, therefore, the 43 States that employ objective shall-issue licensing regimes for carrying handguns for self-defense may continue to do so. Likewise, the 6 States including New York potentially affected by today’s decision may continue to require licenses for carrying hand- guns for self-defense so long as those States employ objective licensing requirements like those used by the 43 shall-issue States.
Justice Coney Barrett also wrote a brief concurrence. Take the link to see that. On December 14, 2010, I wrote an article for PJ Media on a Fox News Sunday interview of Justice Stephen Breyer by Mike Wallace. I recommend it to you, gentle readers, as background for the approach Breyer takes in his dissent from Bruen. In all the intervening years, he continues to see the Supreme Court as a means for D/S/Cs to get what they cannot get through legitimate legislative means.
From the Breyer, Sotomayor, Kagan dissent:
The question before us concerns the extent to which the Second Amendment prevents democratically elected officials from enacting laws to address the serious problem of gun violence. And yet the Court today purports to answer that question without discussing the nature or severity of that problem.[skip]
In other words, “democratically elected officials” should be able to enact any law they please, Constitution be damned.
How does the Court justify striking down New York’s law without first considering how it actually works on the ground and what purposes it serves?
The dissent argues the Court had an inadequate record on which to base a decision—it is apparently the job of the Supreme Court to hold evidentiary hearings beyond the trial record(?!)–and further argued at length against relying on history, particularly the history of the Constitution(?!). It also argues for a “but it’s a really good law that addresses a social problem” approach rather than determining if it violates the Constitution. Their approach would require ignoring the Constitution, if in the judgment of leftist judges and politicians, a law was written in good faith and had a result they preferred. It also argues the Constitution is outmoded and cannot be applied to unique contemporary social issues. By all means, take the link and see for yourself. Breyer’s conclusion:
New York’s Legislature considered the empirical evidence about gun violence and adopted a reasonable licensing law to regulate the concealed carriage of handguns in order to keep the people of New York safe. The Court today strikes down that law based only on the pleadings. It gives the State no opportunity to present evidence justifying its reasons for adopting the law or showing how the law actually operates in practice, and it does not so much as acknowledge these important considerations. Because I cannot agree with the Court’s decision to strike New York’s law down without allowing for discovery or the development of any evidentiary record, without considering the State’s compelling interest in preventing gun violence and protecting the safety of its citizens, and without considering the potentially deadly consequences of its decision, I respectfully dissent.
Before we get into the specific ravings of politicians losing their minds as all about them keep theirs, consider this headline:
Uh-huh. No such thing has been happening in NYC prior to the Bruen decision. The only difference is non-criminal New Yorkers will be able, for the first time in history, to shoot back. We will not, gentle readers, mention the predictions of those who opposed the concealed carry laws of 43 states of streets running red with blood failed to materialize. Also, briefly consider this constitutionally illiterate, but sure to be oft repeated, thought:
How is one thing not like the other? The Second Amendment is an express, unalienable Constitutional right. Abortion is not so much as mentioned in the Constitution, which means its up to the states. We begin with New Yorks’ non-elected governor:
This presages what anti-liberty/gun jurisdictions are going to do in response to Bruen:
She’ll keep New Yorkers “safe from gun violence” by ensuring only violent criminals have guns—the status quo. And what of New York City’s hapless mayor?
New York City Mayor Eric Adams today released the following statement after the U.S. Supreme Court today issued a decision in the case New York State Rifle & Pistol Association v. Bruen:
‘Put simply, this Supreme Court ruling will put New Yorkers at further risk of gun violence. We have been preparing for this decision and will continue to do everything possible to work with our federal, state, and local partners to protect our city. Those efforts will include a comprehensive review of our approach to defining ‘sensitive locations’ where carrying a gun is banned, and reviewing our application process to ensure that only those who are fully qualified can obtain a carry license. We will work together to mitigate the risks this decision will create once it is implemented, as we cannot allow New York to become the Wild West.
‘One thing is certain: We will do whatever is in our power, using every resource available to ensure that the gains we’ve seen during this administration are not undone, to make certain New Yorkers are not put in further danger of gun violence. This decision may have opened an additional river feeding the sea of gun violence, but we will do everything we can to dam it.’
They’ll continue to write unconstitutional laws and dare the Supreme Court to overturn them, which will deny New Yorkers their rights for years. Constitution? They don’ need no steenking Constitution! And so it is for the People’s Republic of California:
Various vacuous celebrity usual suspects have gone stark raving mad over the ruling, but I’ve always appreciated this from Heinlein:
The United States has become a place where entertainers and professional athletes are mistaken for people of importance.
So I’m not quoting them. You know what they’re saying. President Biden—or at least his handlers—also weighed in:
As Twitchy reported earlier, President Joe Biden issued a statement on the Supreme Court’s striking down New York State’s ‘proper cause’ requirement to obtain a concealed carry permit. Biden said that ‘his ruling contradicts both common sense and the Constitution, and should deeply trouble us all.’
What the hell?! It is the job of the Executive branch to ensure the law—in this case the Constitution—is faithfully enforced. Constitutional interpretation is up to the Judiciary. As if that weren’t bad enough:
What the hell squared??!! We know the President and DOJ only enforce laws they like and only prosecute political enemies, but now they’re signaling their refusal to obey the Constitution at all and to directly oppose the Supreme Court? This, I suppose, is the “unity” Biden has repeatedly promised but has yet to deliver.
Final Thoughts: Obviously, we are not going to see an orderly process of adherence to the law. The remaining anti-liberty/gun jurisdictions are going to do everything they can to harass the law abiding and to delay compliance with the Constitution, which is no more than they normally do. Perhaps the only significant variance from the status quo is the Executive Branch is blatantly declaring its intention to violate the Constitution, rather than more quietly just doing it. NYC and New York State will, at the very least, make concealed carry paperwork and requirements even more expensive and sloth-like.
Congressional D/S/Cs, already laughing at Republican useful idiots for going along with their latest anti-liberty/gun efforts, will redouble their efforts at court packing, illegal gun grabs and federalizing vote fraud. They have until the mid term elections, and even if they lose both houses, until January of 2023 before lame ducks are sent packing. Expect them to try to pass blatantly unconstitutional laws by illegal means during that period.
In the meantime, lower courts will continue to try to dance around Heller, McDonald, and now, Bruen.
And so it goes…