The Supreme Court is taking on its first major Second Amendment case in over a decade:
“2008, DC vs. Heller. That was the case that established that Americans can carry a gun for self-defense," Jennifer Mascia says. "And the 2010 case McDonald v. Chicago applied that ruling not just to DC, but to the states. So, the one thing that has not been addressed is – can we carry a gun outside of the home?”
Well, tomorrow, the Court hears argument in a case that could answer that question.
“I think it’s fair to say this is the Second Amendment case that gun rights advocates have been waiting for for over a decade," Darrell A.H. Miller says.
Jennifer Mascia, news writer at The Trace. (@JenniferMascia)
Darrell A.H. Miller, co-director of the Duke Center for Firearms Law. Professor of Law at Duke Law School. Co-author of "The Positive Second Amendment."
On the history behind New York State Rifle & Pistol Association, Inc. v. Bruen
Jennifer Mascia: "About six years ago, a man named Robert Nash, he lives in Rensselaer County, which it's an upstate county. It's right next to Albany. He was granted a pistol permit that allowed him to carry a concealed gun. But it had a limitation that made it for hunting only. And the next year, when there was a string of robberies in his neighborhood, there was local break-ins, including one on his block. He asked a local issuing authority, which is a state Supreme Court judge up there, to remove the permits limitations and allow him to carry a gun for personal protection.
"But the judge determined that he didn't demonstrate something called proper cause. Specifically, that's a special need to carry a gun for self-defense. This is something that only a few other states have. California, Hawaii, Massachusetts, New Jersey. In those states, you can't just say, Hey, I want to carry a gun for protection. You need to have a special reason, and that reason has to be approved by the issuing authority. And so in 2018, Robert Nash, he sued to overturn the proper cause requirement in New York.
"And he was joined in the suit by the local NRA affiliate, the New York State Rifle and Pistol Association, and another resident of Rensselaer County, who was also denied a permit. And his name was Brandon Koch. Now in his application, he admitted that he didn't face a threat to his life. He didn't have so-called proper cause. So you have one plaintiff who was saying, I have a reason and that reason was not approved. And then you have another one saying, I don't have a reason. I just think New York should be like other states and should be able to carry without citing that need."
What kind of evidence is the Supreme Court going to be looking at in in determining this question of how proper cause is decided?
Jennifer Mascia: "There are people who live in rural areas who argue, convincingly, that ... it takes 20 minutes for a police officer to come to my house. If there is a break in and I face an immediate threat, I should be able to handle that myself. And it's understandable in rural environments when such a thing, you know, but for a population that small, they're arguing that it made enough of an impact. And of course, the FBI, as you said, that data is reported by local law enforcement agencies and reporting is voluntary. So of course, we may not know. But you know, in some people's minds, a break in on your block in a very quiet county is cause for alarm. And they are going to argue that. And that's a subjective, matter of perspective, I suppose."
On this case as the last frontier in the expansion of of gun rights in the United States
Jennifer Mascia: "Heller in 2010 was a landmark decision. The justices decided that Americans have a constitutional right to have guns in their homes, and that the core right in the Second Amendment is to keep guns for self-defense. And two years later, that was expanded to the states. But it left open this one big, huge question, and that's whether the Second Amendment protects the right to carry a gun outside the home.
"And several appeals courts have upheld proper cause requirements. Most recently in March, when actually a George W. Bush appointee said that the power to regulate arms in the public square was consistent with more than 700 years of English and American legal history. And look, even in Heller, Scalia famously said, Like most rights, the Second Amendment right is not unlimited. Governments are allowed to set rules around guns. So that's why this is so pivotal. Because Scalia was a far-right justice. Now the court has a 6-3 majority. Is the court going to go even farther right?"
What impact could New York State Rifle & Pistol Association, Inc. v. Bruen have on jurisdictions nationwide?
Jennifer Mascia: "This ruling could go one of three ways. So if the justices strike down New York's proper cause requirement, just keep it limited to this case, these plaintiffs, this county in New York, they could keep their ruling narrow. And if they strike it down, they could say you have to rewrite your gun permitting rules and could also redirect the circuit courts to reexamine this issue. And then they could also take a larger, a broader scope. And say, Look, the fact that chief law enforcement officers in certain states have the discretion to reject applicants this way ... in many states, if you meet all the requirements, the chief law enforcement officer must give you a concealed carry permit.
"They could say the handful of states that allow these chief law enforcement officers to decide whether they want to or not can be completely struck down. And so that means that eight other states have to switch to automatically granting permits as long as certain requirements are met. And in the broadest possible ruling, the justices, they could completely rewrite the methodology that federal courts have used to decide Second Amendment cases. And that means a lot. That means that they're taking an originalist approach and saying that real world circumstances don't matter as much."
From The Reading List
The Trace: "The Supreme Court’s Next Big Gun Case, Explained" — "On April 26, the Supreme Court agreed to hear a challenge to New York State’s concealed carry laws."
Washington Post: "Conservatives sound like anti-racists — when the cause is gun rights" — "Gun rights have gone woke, if the briefs filed in the Supreme Court’s pending case, New York State Rifle & Pistol Association, Inc. v. Bruen, are any indication."
This program aired on November 2, 2021.