Anti-Gun States Blatantly Ignore U.S. Supreme Court’s Recognition Of The Right To Bear Arms

[Charlie T Waite]

Lawmakers debate legislation to consider new firearms regulations for concealed-carry permits during a special legislative session in the New York Assembly Chamber at the state Capitol Friday, July 1, 2022, in Albany, N.Y. 

In June, the U.S. Supreme Court issued its opinion in the NRA-backed case of New York State Rifle & Pistol Association v. Bruen. It was a resounding victory for the Second Amendment and vindicated the principle (obvious to all but gun-control advocates) that Americans have an individual right to “bear” arms in public for self-defense.

The opinion also prescribed a standard of review that lower courts must apply in resolving Second Amendment cases. This demanding test requires respect for the original understanding of the right to keep and bear arms and prohibits infringements on this right unless a similar legal tradition existed when the Bill of Rights or the 14th Amendment were adopted.

Success in Bruen did not happen accidentally. It was the result of tireless advocacy, strategic litigation and electoral victories that culminated in former President Donald Trump’s appointment of three originalist justices to the U.S. Supreme Court.

Yet, Bruen is only the first of many steps that will need to follow. Anti-gun states, including New York, remain in open rebellion against the right to keep and bear arms. They will not comply in good faith. The rebellion will have to be put down in the courts, the legislatures and with the weight of public opinion. Your NRA, as always, will be leading the way.

Anti-gun states, including New York, remain in open rebellion against the right to keep and bear arms.

Let’s not forget what brought us to this moment. As of early 2008, the anti-gun establishment believed—contrary to popular opinion and Supreme Court precedent itself—that they had successfully written the Second Amendment out of American law. The elites in law and academia insisted the Second Amendment was the relic of an obsolete militia paradigm that had given way to the rise of modern military and law-enforcement services and had nothing to say about an individual right to own or carry a gun for private purposes.

The U.S. Supreme Court began to set the record straight in District of Columbia v. Heller (2008). That case invalidated a D.C. law that banned ownership of handguns and the keeping of functional firearms within one’s home. It indisputably recognized that the Second Amendment protects an individual right to keep and carry weapons in case of confrontation, regardless of service in an organized militia.

Anti-gun jurisdictions reacted to Heller with fury and defiance. The District of Columbia theoretically legalized handgun ownership, but through a complicated, expensive and burdensome registration process that put handguns out of reach for many local residents, especially lower-income and busy working people. The District also effectively prohibited buying or selling firearms from dealers within D.C. itself. Meanwhile, other anti-gun jurisdictions—including Chicago, which had its own handgun ban—insisted that Heller didn’t apply to them at all, since it concerned only a federal enclave.

It took years and millions of dollars in additional litigation to right these wrongs, even though certain left-leaning scholars and pundits occasionally admitted that the restrictions were basically delay tactics and were not likely to stand in the long run.

Sure enough, the Supreme Court repudiated the ridiculous idea that states and localities did not have to obey the Second Amendment with its 2010 opinion, McDonald v. City of Chicago, which invalidated Chicago’s handgun ban. That opinion made clear the right to keep and bear arms is “fundamental” to the U.S. “scheme of ordered liberty” and cannot be treated as a second-class right.

Of course, that’s exactly what Chicago and other anti-gun jurisdictions continued to do. Like D.C., they made handgun ownership so expensive, onerous and impractical that the right recognized by the U.S. Supreme Court continued to remain illusory for many.

The high court’s opinions in Heller and McDonald were narrowly focused, leaving many questions about the scope and application of the right unanswered. Gun-control advocates took advantage of this, insisting their pre-Heller laws were unaffected by the Court’s decisions, and inventing ever more ways to restrict the right to keep and bear arms. These included: effectively banning firearm sales outright; making common and popular guns illegal; broadening the scope of prohibited-person categories; and limiting the right to arms to the interior of one’s private residence.

The same anti-gun judges who were willing to read the Second Amendment out of the Constitution entirely were equally willing to limit Heller and McDonald to their narrowest facts, ignoring the necessary implications of the opinions’ reasoning and language. A steady stream of lower-court decisions threatened the Second Amendment with death by a thousand cuts.

Meanwhile, the U.S. Supreme Court didn’t take another major Second Amendment case for 12 years after McDonald. Second Amendment stalwarts like Justice Antonin Scalia, Heller’s author, and his fellow originalist Justice Clarence Thomas, criticized the court for abandoning and disfavoring the right.

The biggest issue that remained disputed after Heller and McDonald was the scope of the right to “bear,” and, specifically, whether it extended beyond the home itself. Of course, no one who gave those opinions an honest and thorough reading could deny that it did. But D.C. and eight states pretended otherwise and continued to make bearing arms in public for self-defense subject to the discretion of licensing officials, who demanded applicants prove an extraordinary need for it. In practice, this meant ordinary citizens were denied their rights, while a favored few could use celebrity, connections or outright bribery to enjoy the “privilege” of virtually unrestricted public carry.

NRA-supported litigation managed to defeat these sorts of “may-issue” concealed-carry-licensing regimes in D.C. and Illinois. Nevertheless, the other may-issue states dug in, and lower courts accommodated them. These included the highly populous states of California and New York and their corresponding federal circuits.

Americans themselves, however, voted with their dollars, buying firearms in record numbers and increasingly obtaining concealed-carry permits to bear their guns in public. Fully half the states have now done away with license or permit requirements for the lawful public carrying of concealed handguns.

President Trump’s appointments in the interim, moreover, had made originalism—the legal philosophy underlying Heller—the prevailing approach to constitutional interpretation among a solid majority of U.S. Supreme Court justices. This set the stage for another Second Amendment showdown in the high court.

As fate would have it, New York’s discretionary concealed-carry-licensing regime became the vehicle for the Supreme Court’s first serious re-examination of the Second Amendment since its decision in McDonald. Few who followed the proceedings, in which even New York finally acknowledged some right to bear arms existed beyond the home, doubted which way the Court would go. The main question was how badly New York would lose.

In fact, gun controllers in the Empire State lost big. The high court condemned to the dustbin of history the requirement that license applicants establish a “special need” for self-defense that set them apart from the general public. It reiterated its earlier admonition that the Second Amendment is not a second-class right. And it set a demanding historical standard of review for future cases.

In typical fashion, gun controllers reacted with denial and insubordination. 

New York convened an “extraordinary session” of its legislature to jam through a bill that actually makes its concealed-carry-licensing regime even stricter. Gov. Kathy Hochul (D) signed the measure into law on July 1, barely a week after the court issued Bruen. 

The centerpiece of the legislation is an extensive list of “sensitive places” where firearms may not be carried, including by concealed-carry licensees. These include all of Times Square, public parks, entertainment venues, houses of worship, public transportation vehicles and facilities, bars and restaurants that serve alcohol, and all other private property, unless the property owner opts-in to recognizing the right with conspicuous signage. Those, however, are just some of the lowlights. 

The practical effect is that concealed-carry licenses will be essentially worthless in densely populated areas. And, while the law does eliminate the former “special-need” standard, licensing officials are vested with broad discretion to determine whether applicants have “the essential character, temperament and judgement necessary to be entrusted with a weapon.” This includes subjective factors such as personal interviews, character references and even mandatory disclosure of an applicant’s social-media accounts.

Similarly, guidance issued to licensing officials in California by the state’s Office of the Attorney General simply shifted the discretionary aspect of license approval from the applicant’s need to carry to determination of the applicant’s “good moral character.” The office suggested this could include consideration of such subjective factors as “honesty, trustworthiness, diligence, reliability, respect for the law, integrity, candor, discretion, observance of fiduciary duty, respect for the rights of others,” etc., etc. Meanwhile, the California legislature has been advancing its own legislation to make concealed-carry licenses more expensive, more difficult to obtain and much more heavily restricted in scope.

Despite these rebellious efforts by New York, California and others, huge progress was made with the Bruen case, and we will continue to fight these new infringements wherever they arise. While the gun-control establishment will continue to push their unconstitutional agenda, we will be there to make sure freedom prevails.

Your activism and your pro-gun votes will be needed more than ever to make this possible.