Thursday, November 4, 2021

Arguments in NYSRPA v Bruen

Today’s hearing by the Court is literally one of the BIG cases of this year that WILL affect everyone in the US.  

This case may well decide the issue of “What does the Constitution mean when it says the ‘the right to 
keep and BEAR arms hall not be infringed’  (capitalization added).”  While most people may think this is a question that was decided 100 or 200 years ago, the fact is, the Supreme Court has not ever ruled on the issue.  

Amazingly, only recently has the Supreme Court decided what the 2nd Amendments means.  Until 2008 the Court had never said what it means to KEEP arms.  The issue of KEEPING arms was not actually ruled by the court to be an individual right until District of Columbia v. Heller 554 U.S. 570 (2008).  Until 2008 there where many that said the 2nd Amendment meant the only right to keep and bear arms was for those in the Militia or National Guard. 

Does the 2nd Amendment apply to the States? Or does it only apply to the Federal Government?  That question was not decided until 2010 in Mc Donald v Chicago, 561 U.S. 742 (2010) when the Court ruled that the 2nd Amendment applies to individual states because of the 14th Amendment. 

The Heller decision DID say the 2nd Amendment meant Americans had the right to arm themselves for Self Defense.  However, the Heller Decision did not specifically state when, where or under what conditions allowed an individual to be armed for Self Defense.  

Generally, the Heller Decision DID say a person had the right to carry a firearm for self defense.  There are two ways to carry a firearm- open carry, where the firearm is visible or concealed- where the firearm is not visible.  

At issue in NYSRPA v Bruen is the New York concealed carry license system.   New York prohibits open carry or “non-concealed” carrying of firearms.  For Concealed Carry, under  NY law, a person must be of good character, must have certain training and meet other requirements in order to get a concealed carry permit that would allow the individual to carry a concealed weapon in most places.  

Additionally, the person must show CAUSE;  the individual must show a specific and SPECIAL need for self defense that significantly differentiates the individual from the general public.  Saying “I travel through high crime areas” is NOT a reason for a permit.  Saying “there have been several muggings in my neighborhood” is not sufficient.  Saying “I go to this specific area on these specific nights and have received this specific threat” MIGHT be sufficient.  But as we see in this case, that could mean you get a permit that allows you to carry to that ONE location- but no where else.   Largely, in New York, your right to carry a weapon, may just depend on WHO you are and WHERE you live.   

New York’s system is NOT unique- but it is rare.     The “exceptional cause” or “good cause” rule exists in seven states- California, Hawaii, New York, California, Delaware, Massachusetts and New Jersey.   In the remaining 43 states, there are SHALL ISSUE laws.  If a person meets the legal requirements- whatever they are- a carry permit MUST be issued.  In the SEVEN jurisdictions with “good cause” laws, it doesn’t matter if you meet ALL requirements, have all the training, and live your life as an angel.  The the hearing officer or sheriff or whoever the licensing person is MAY CHOOSE to reject your application.   

For example, in 1956 Alabama was a “may issue” jurisdiction- just like New York is today.  In 1956, A black minister applied for a concealed carry permit because he had gotten threats against his life.  His concealed carry permit was denied - even though he met EVERY requirement under Alabama law.   Because Alabama had a MAY issue law that allowed the Sheriff or local official to decide if they “wanted” to issue the permit, the permit was denied.  In the past, many states passed “may issue” and “good cause” laws, so they could refuse to allow blacks, immigrants, union organizers and other “undesirables” their right to carry a gun.    If the state said “you can only carry with a license” and the state was a “may issue” state, they could deny the right to self defense- the Second Amendment- to anyone the ruling people did not like.   The black minister denied a concealed carry permit was a person that many in 1956 Alabama hated.  His name was Dr. Martin Luther King, Jr.  

Today, 43 States in the United States are SHALL ISSUE States.   If you meant all the rules, have a clean background , take the right classes and pay the fees, you SHALL be issued a concealed carry permit or license.   It doesn’t matter your race, sex, religion or any other factor; if you meet the requirements, you must be issued a permit or license.   

In the case before the Court, the NYSRPA and it’s members argue that since there is NO open carry of firearms allowed, the only option is to carry concealed.  The state of New York agrees.    The State of New York says they  issue concealed carry licenses to anyone that has good cause, so we are not violating the Second Amendment at all.   NYSRPA and its members say you should NOT have to prove you have “good cause” to exercise your 2nd Amendment Rights.  They say since it is so rare that permits are issued, the state is denying 2nd Amendment rights to almost everyone in New York. 

In the case heard today, one specific exchange between Supreme Court Justice Alito and New York Attorney General Underwood distilled the issues to their core: 

(From the Transcript of Oral Arguments in NYSRPA v Bruen on November 3, 2021):
JUSTICE ALITO: Could I -- could I -- could I explore what that means for ordinary law-abiding citizens who feel they need to carry a firearm for self-defense? So I want you to think about people like this, people who work late at night in Manhattan, it might be somebody who cleans offices, it might be a doorman at an apartment, it might be a nurse or an orderly, it might be somebody who washes dishes. None of these people has a criminal record. They're all law-abiding citizens. They get off work around midnight, maybe even after midnight. They have to commute home by subway, maybe by bus. When they arrive at the subway station or the bus stop, they have to walk some distance through a high-crime area, and they apply for a license, and they say: Look, nobody has told -- has said I am going to mug you next Thursday. However, there have been a lot of muggings in this area, and I am scared to death. They do not get licenses, is that right?
MS. UNDERWOOD: That is in general right, yes. If there's nothing particular to them, that's right.
JUSTICE ALITO: How is that consistent with the core right to self-defense, which is protected by the Second Amendment?
MS. UNDERWOOD: Because the core right to self-defense doesn't -- as -- as this Court said, doesn't allow for all to -- to be armed for all possible confrontations in all places.
JUSTICE ALITO: No, it doesn't, but does it mean that there is the right to self-defense for celebrities and state judges and retired police officers but pretty much not for the kind of ordinary people who have a real, felt need to carry a gun to protect themselves?
MS. UNDERWOOD: Well, if that ordinary person -- Mr. Nash had a -- a concern about his parking lot, and he got a permit. I think the extra problem in Manhattan is that you – your hypothetical quite appropriately entailed the subways, entailed public transit, and there are lots of people on the subways even at midnight, as I can say from personal experience, and the particular specter of a lot of armed people in an enclosed space --
JUSTICE ALITO: There are -- there are a lot of armed people on the streets of New York and in the subways late at night right now, aren't there?
MS. UNDERWOOD: I don't know that there are a lot of armed people-
MS. UNDERWOOD: I think there are people --
JUSTICE ALITO: How many -- how many--
MS. UNDERWOOD: -- there are people with illegal guns if that's what you're --
JUSTICE ALITO: Yeah, that's what I'm talking about.
MS. UNDERWOOD: -- referring to. Yeah.
JUSTICE ALITO: How many illegal guns were seized by the -- by the New York Police Department last year? Do you -- do you have any idea?
MS. UNDERWOOD: I don't have that number, but I'm sure there's a -- it's a substantial number.
JUSTICE ALITO: But the people -- all -- all these people with illegal guns, they're on the subway --
MS. UNDERWOOD: I don't -- I don't --
JUSTICE ALITO: -- they're walking around the streets, but the ordinary hard-working, law-abiding people I mentioned, no, they can't be armed?
Justice Alito really brought this case into tight focus.  This case is REALLY about one issue - Does the Second Amendment mean ALL law abiding citizens have the right to carry for self defense? Or does it mean that only the select few, who a New York official feels are worthy, have the right to carry for self defense. 

Do we, as a people, live in a Country where a Constitutional Right can be conditioned upon Special Need?   We certainly never would say “you must show you have a ‘special need’ or ‘good cause’ to give a speech.  We would never say, “you must show a ‘special need’ to require the police to have a warrant to search your home.  

This case addresses that issue.  We will find out the decision, when the Court announces its ruling - mostly likely in June 2022.  



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