Supreme Court Agrees To Hear 2nd Amendment Case Over NY Restrictions On Concealed Carry

Supreme Court Agrees To Hear 2nd Amendment Case Over NY Restrictions On Concealed Carry

Today, the U.S. Supreme Court granted review in New York State Rifle & Pistol Association v. Corlett (now v. Bruen), a case challenging the constitutionality of New York State’s concealed carry licensing scheme.  The case argues that New York’s “may issue” licensing scheme violates individuals’ Second Amendment-protected rights—but could mean a lot more for gun rights across the nation.

If the name New York State Rifle & Pistol Association (NYSRPA) sounds familiar, that’s because a little over two years ago (in January 2019), the Supreme Court granted review in a prior NYSRPA case.  That case sought to overturn New York City’s restrictive transportation ban on firearms licensed within city limits.

NYSRPA v. City of New York was the first gun rights case the Supreme Court agreed to hear since the landmark case of McDonald v. Chicago in 2010 (yes, the Supreme Court decided the Second Amendment case Caetano v. Massachusetts in 2016, and while still important, that was on a per curiam basis and involved a taser, not a firearm).

But after the Supreme Court granted certiorari in 2019, NYC did everything it could to avoid the Court’s review.  NYC amended the challenged law and the state of New York passed a law purportedly preventing the city from reverting to its old restriction.  At oral argument, the question of mootness—whether there remained an active, viable legal issue that must be resolved by the Court—became front and center.

Eventually, the Supreme Court determined the issue may have been moot and sent the case back to the district court for additional analysis. And then, to rub salt in the wound, the Court denied ten other pending Second Amendment cases before it, forcing many to question where a certain Chief Justice may fall on the Second Amendment issue.

Eleven months later and the Court has decided to wade back into these troubled waters. And in a bit of poetic justice, it’s NYSRPA that gets a new opportunity to change our national Second Amendment jurisprudence.

So, what is this new case about?

New York State generally prohibits the carriage of a firearm in public—both openly and concealed.  An individual can only carry a firearm concealed if they apply for and receive a license issued by a state “licensing officer.”  But in New York, a concealed carry license isn’t so easy to come by.

A licensing officer will only issue a concealed carry permit if the applicant meets a lengthy list of criteria, including things such as being twenty-one years of age or older, being “of good moral character,” and not having been convicted of a felony or “a serious offense.”  This list, although long, is fairly standard among states that require citizens to get a permit to carry a firearm concealed.

But New York is what is called a “may issue” state, meaning the state adds an additional barrier to getting a permit.  A licensing officer will only issue a concealed carry license to an applicant “when proper cause exists for the issuance thereof.”  In contrast, “shall issue” states require the licensing authority to issue a concealed carry license to an applicant so long as they are not specifically prohibited from having one.

New York’s discretionary consideration makes it all but impossible for law-abiding Americans to receive a permit to carry a firearm concealed in New York.

The burden is placed on the applicant to “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”  In other words, an applicant’s mere desire to carry a firearm for the purpose of self-defense is not “proper cause” in the eyes of New York.

This is the law NYSRPA and two individuals are challenging.  Robert Nash, one of those individuals, applied for a concealed carry license in response to a string of robberies in his neighborhood.  He also completed an advanced safety course prior to applying.  He was denied a license because he “failed to show ‘proper cause’ to carry a firearm.”  Brendan Koch applied for a concealed carry license for the general purpose of self-defense after completing numerous voluntary safety courses.  He was similarly denied a license.

New York is currently one of eight “may issue” states left in the country.  So, on the surface, this case presents the Supreme Court with the opportunity to consider whether the ability to carry a firearm in public can be left up to a discretionary consideration of special need by a city or state.

But this case means a whole lot more for gun rights across the nation.

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.

Second, this case will require the Court to affirmatively state whether the right to keep and bear arms extends outside of the home.  In both Heller and McDonald, the Court reviewed restrictions on firearm ownership and storage in the home.  Neither of those cases affirmatively addressed the right beyond your driveway.

This is something Justice Thomas specifically noted in the past when dissenting from the Court’s denial of certiorari in Rogers v. Grewal, a New Jersey carry case much like NYSRPA v. Corlett:

This case gives us the opportunity to provide guidance on the proper approach for evaluating Second Amendment claims; acknowledge that the Second Amendment protects the right to carry in public; and resolve a square Circuit split on the constitutionality of justifiable need restrictions on that right.  I would grant to petitioner for writ of certiorari.

In order to decide the constitutionality of New York’s carry license, the Supreme Court will first have to “determine” whether the Second Amendment protects the possession of arms outside of the home.

Overall, this case has the potential to not only stop states from arbitrarily prohibiting citizens from carrying firearms in public but could also vindicate the right to keep and bear firearms outside the home and firmly establish how Second Amendment cases are decided by courts across the nation.

This case will be the one to watch for the foreseeable future.

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Cody J. Wisniewski (@TheWizardofLawz) is the Director of Mountain States Legal Foundation’s Center to Keep and Bear Arms. He primarily focuses on Second Amendment issues but is happy so long as he is reminding the government of its enumerated powers and constitutional restrictions.

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