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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

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.

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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Comments

Thiose photos of Roberts having his jollies on epstein’s pedo island are going to come in handy – again.

Does anybody here trust the Supreme Court as an institution with Roberts as chief justice?

    George_Kaplan in reply to TheFineReport.com. | April 26, 2021 at 10:44 pm

    Fortunately the court is split 5:4 so Roberts isn’t the deciding vote.

    I don’t trust ACB either. A multi-million dollar advance from an ultra-liberal publisher that almost certainly can’t be earned out? Yeah, nothing to see here.

      txvet2 in reply to randian. | April 26, 2021 at 11:58 pm

      Nor Kavanaugh.

        The Friendly Grizzly in reply to txvet2. | April 27, 2021 at 6:56 am

        The GOP presidents can sure pick them. Eisenhower gave us Earl Warren. But, at least Ike said it was a bad decision.

      MattMusson in reply to randian. | April 27, 2021 at 12:00 pm

      For years, Unions bought thousands of copies of Congressional Memoires from people like Ted Kennedy. Today, if they bought thousands of Ebook copies, it would be a much lower overhead bribe.

      Milhouse in reply to randian. | April 28, 2021 at 11:42 pm

      What “ultra-liberal publisher”? Sentinel is a decidedly conservative imprint. Yes, it’s part of Penguin Random House, but it’s editorially and creatively independent, and has its own budget.

    i have ZERO faith in the “supremes” and their rulings:

    they have proven, time and again, to be anything but an august body, solely interested in the law, and the Constitution, and are nothing but a majority collection of political hacks who will contort the english language however they must to meet their personal goals, and to please their masters.

    i fully expect them, when the smoke clears, to reverse both Heller & McDonald, claiming they went against prior precedent, and then eviscerate the 2nd Amendment, once and for all.

    i pray i am wrong, but i have no hope.

Colonel Travis | April 26, 2021 at 8:22 pm

How come we don’t need a permit to comment here, or a permit to go to church, or a permit to publish, or a permit to get a jury trial, etc.

To defend my life in the most efficient and equalizing way possible, for some idiotic reason I have to ask mommy government if it’s OK. I could not live in a state that didn’t allow me to defend myself as I do now. I would move.

Oh, and when I got my permit? I was no more “qualified” the day before than the second after I passed. I regularly train with smart, experienced people to help me understand what I’m doing and the responsibility I have.

Then again, if you teach people responsibility from the get-go, teach them how to be adults, there is no need for a (D) party. It is the party of the children, by the children, for the children.

    Subotai Bahadur in reply to Colonel Travis. | April 26, 2021 at 10:36 pm

    To be honest, if the current regime had its way, we WOULD need a permit for all of those things. And we are one decree away from it being so.

    Subotai Bahadur

    redc1c4 in reply to Colonel Travis. | April 27, 2021 at 1:18 am

    that’s different.

    and why are you so insecure that you think you need a weapon to make up for your short comings?

    😉

    MattMusson in reply to Colonel Travis. | April 27, 2021 at 12:02 pm

    I wonder what we would have today if the Constitution said a ‘Well Regulated Press’ was essential to the country?

    Milhouse in reply to Colonel Travis. | April 28, 2021 at 11:54 pm

    How come we don’t need a permit to comment here,…

    The states that restrict carrying in this way, and the circuit courts that support them, say the difference is that while they accept that owning a gun is a constitutional right, and indeed doesn’t need a permit, carrying one in public is not. They do not agree that “bear arms” means carrying in public; they say it means only on your property. They get to say that because the supreme court has never said they’re wrong; it’s never considered this question before. This is the opportunity for it to decide what “bear” means in this context.

MoeHowardwasright | April 26, 2021 at 8:58 pm

An armed society is a polite society. If you want a concealed carry permit because you think your John McClaine. You’re not. And you’ll end up in jail. Train, train and train some more. And read Andrew’s book. It will make you think and maybe keep you out of jail for being foolish.

I have little faith in the system’s institutions being able to fix the system

I previously decided that should I ever need to carry a gun that I wasn’t asking permission.
The 2nd Amendment is the permission slip.

    The Friendly Grizzly in reply to 4fun. | April 27, 2021 at 7:03 am

    I agree completely with you, but, in the real world, tell that to the cop or federale splitting your skull open or gunning you down “in fear for their life” for pointing to the 2nd as your permit.

“And in a bit of poetic justice, it’s NYSRPA that gets a new opportunity to change our national Second Amendment jurisprudence”

I’m not sure sure that’s true. That’s what McDonald and Heller were supposed to do, but SCOTUS never defended those rulings against lower courts determined to undermine them. We could get another spectacular ruling from SCOTUS in this case, yet nothing really changes because SCOTUS won’t defend themselves against judicial revolt.

Oddly enough, I don’t remember the 2nd Amendment saying “The people shall have the right to keep and bear arms, provided they can convince the government that they really need them for a specific purpose, which can be revoked at any time for any reason.”

    txvet2 in reply to georgfelis. | April 27, 2021 at 1:23 pm

    The part about a well regulated militia is pernicious enough. THEY knew what they meant, WE’re pretty sure we know what they meant, but the left continues to make hay with their own interpretation.

another threatening letter from Schumer, et al, will guide the Court in the proper direction

There should be only one possible decision here; ‘shall not be infringed’ is absolutely unambiguous — anything else is just blah blah in the service of government tyranny — everyone should recognize this.

    alaskabob in reply to eah. | April 27, 2021 at 12:43 pm

    Oh, but the small print in 2A…which can only be seen with the correct penumbra says the State is free to determine who is “free”..as in “work makes you free”. Silly us to think the slave owning white supremacists actually meant what they wrote….according the NY government. Ben Franklin would say today….” you didn’t keep it”.

    You can keep and bear arms in your home…but can’t get the firearm home to keep and bear…ah…I see now.

Fat_Freddys_Cat | April 27, 2021 at 8:14 am

If the court does rule in favor of the 2nd, I hope whoever writes the ruling has the good sense to not repeat Scalia’s mistake in the Heller ruling, i.e. adding caveats and hedging words that can be seized upon by the gun banners for their propaganda.

It’s funny how my sister lives in New York and is horrified that people would run about with a gun on them. She firmly believes that this is what causes crime. I live in Tennessee and the assumption is made that everyone is carrying concealed. When I moved to a small town and signed up for utilities I needed two picture IDs. After showing my driver’s license I was puzzled as to where I might have another picture ID when the lady on the other side of the counter said I could use the concealed carry permit she assumed I had.

It’s all risk perception and those in places like NY have been told for the longest time how dangerous concealed carry is and now they buy into the idea hook, line, and sinker. It is such a dogma to them that it never occurs to them to question it.

    GWB in reply to Cleetus. | April 27, 2021 at 9:03 am

    It’s relying on others for your safety vs. providing for your own.

    Most human nature would much rather be taken care of by someone else.

Don’t trust the courts at all. Even after Heller, it’s clear the courts have ignored the ruling–and nothing happens. Given the make up of this dysfunctional USSC, there’s no telling what idiocy could result. Maybe Roberts will create a new tax.

presents the Court with the opportunity to firmly establish the appropriate test for lower courts to evaluate Second Amendment challenges
The thing is, your next paragraph basically lays out that they already did with Heller! It’s not that the test wasn’t “firmly established,” it’s that the lower courts ignore it when they want to.

The problem here is not that the SCOTUS didn’t establish an adequate test, but that they have absolutely no authority unless people willingly follow their decisions. The only recourse we have is for the legislature to impeach the other justices for not following the Constitution – and you and I know there’s not but maybe 50 in the whole US legislature that would vote for that. (You’d find a lot more than 50 if they were impeaching judges for following the Constitution.)

I don’t see how New York’s laws can stand this decision. They abridge our 2nd amendment rights when they issue only permits allowing a pistol in the home (or locked & on the way to the range). That denies my ability to protect myself. In liberal Tompkins county, I could not get a concealed carry even though I was at the time I was a well trained officer for an intelligence agency, and carrying under that hat.

    Milhouse in reply to Eddie Coyle. | April 28, 2021 at 11:59 pm

    They claim there is no second amendment right to carry outside your home. And the supreme court has never said they’re wrong. It’s never had the chance. This is the first time it will have an opportunity to do so.

This is brazen Dhimmi-crat tyranny — the peasant rabble must “prove” to the ruling apparatchiks that they “deserve” to exercise rights that are explicitly enshrined in the Bill of Rights.

The Dhimmi-crats are vile totalitarians.

I hope on of the Attorney’s asks “Why is a New York Drivers’ License valid in Florida, but a Florida Concealed Weapons License is not valid in New York?”

    Milhouse in reply to CaptTee. | April 29, 2021 at 12:01 am

    That one’s easy. Florida chooses to accept NY drivers’ licenses, and NY chooses to accept Florida ones. Neither state has to. In the case of concealed carry permits FL chooses to accept those from other states, and NY chooses otherwise. Nothing in this case will force it to change that.

“And if the Court reiterates its text, history, and tradition test, it will do so for the better.”

I agree. 100%

“Second, this case will require the Court to affirmatively state whether the right to keep and bear arms extends outside of the home.”

Unfortunately, this case will not. The justices rewrote the question presented to the court from one that asked whether or not there is a right to carry a handgun in public to whether or not the denial of the petitioners’ applications for concealed carry permits violated the Second Amendment.

The Heller opinion used “text, history, and tradition” as its methodology and concluded that prohibitions on concealed carry do not infringe on the Second Amendment right.

New York will have on its side, American and English case law and laws prohibiting concealed carry as well as prohibiting the possession of concealable weapons going back to ca 1260 AD.

NYSRPA will have on its side a single, sharply divided 19th-century court decision that held that under the Kentucky Constitution, a man had the right to carry a cane sword. Kentucky changed its constitution to prohibit concealed carry.

Only cowards and criminals carry concealed weapons. The most likely outcome of NYSRPA v. Corlett is that the justices show why concealed carry is not protected by the Second Amendment using the text, history, and tradition methodology, and then instructs the lower courts to use that methodology when evaluating Second Amendment cases from then on.

https://rumble.com/vg8rbx-the-most-likely-concealed-carry-decision-by-scotus.html

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