Gun Rights

Second Amendment Litigants Hope To Try Their Luck With Amy Coney Barrett

The Second Amendment Foundation files a flurry of lawsuits in November, with three aiming at laws restricting public carry.

|

The Supreme Court has continued to largely evade cases about the Second Amendment since the one-two punch of 2008's D.C. v. Heller (which declared the amendment protects an individual right to possess commonly used weapons for self-defense in the home) and 2010's McDonald v. Chicago (which extended that reasoning to state and local laws).

With a more solid majority of jurists on the Court with a record of respect for the Second Amendment now that Amy Coney Barrett has been confirmed, the Second Amendment Foundation (SAF), in collaboration with other plaintiffs and organizations, filed a flurry of November lawsuits attempting to extend the reach of the Second Amendment. Should such a case actually end up getting considered by the Supreme Court, gun rights groups have a better chance of prevailing in the Barrett era, as well as a better chance of being taken up in the first place.

Three of the suits aim at laws in three states restricting people's ability to carry their guns outside the home, an issue left unresolved by Heller. One, Bennett v. Davisfiled in U.S. District Court for the District of New Jersey, insists that the citizen plaintiffs "have a fundamental, constitutionally guaranteed right to carry loaded, operable handguns on their person and outside their homes, including in their vehicles, places of business, and otherwise in public, for the purpose of self-defense."

New Jersey law makes it a second-degree felony to carry a gun in public without a carry license. Such licenses are by state law issued at the discretion of police and generally require proof that you have a "justifiable need," meaning an "urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant's life that cannot be avoided by means other than by issuance of a permit to carry a handgun."

The lawsuit does acknowledge the bad news for arguing that this particular law violates the Second Amendment: Similar arguments were made against New Jersey's carry permit laws in a case called alternatively Drake v. Filko and Drake v. Jerejian. Those arguments lost in the 3rd U.S. Circuit Court of Appeals, and the Supreme Court in 2014 declined to take up the case.

This June, the Court declined certiorari in another challenge to New Jersey's permit law, Rogers v. Grewal. In dissenting from the Court's decision not to take up that case, Justice Clarence Thomas complained, rightly, that the Supreme Court, by largely ignoring chances to refine or extend its Heller analysis, has let various lower courts run roughshod over the Second Amendment by inventing lower standards of scrutiny not set forth by the Court, resulting in various "analyses that are entirely inconsistent with Heller."

Still, this new suit insists when properly considered, "under the text of the Constitution, our Nation's history and tradition, and the Supreme Court's precedents, [New Jersey's carry permit laws should] be declared unconstitutional and enjoined so that Plaintiffs and law-abiding individuals like them can exercise their constitutional right to bear arms—both inside and outside of their homes."

Another suit filed last month in U.S. District Court for the Southern District of New York aims a similar challenge at New York's carry permit laws. The suit, Greco v. City of New York, argues:

Law-abiding citizens have a fundamental right to bear arms—including, specifically, operable modern handguns—for the "core" purpose of self-protection. The only way that a private citizen can exercise this right in New York City is by obtaining a license from the New York City Police Department. To obtain this license, the person must (among other things) meet a highly restrictive "proper cause" standard that requires a showing of special or heightened need. This standard acts to ban all typical and average law-abiding citizens from obtaining licenses as they, by definition, are not able to show special or heightened need. However, all people, not just those with special or heightened needs, have a fundamental right to bear arms by carrying handguns, away from their homes and in public, for the purpose of self-defense.

As with the Jersey case, this suit insists that a rational assessment of the meaning of the Second Amendment as established in Heller should knock down the New York law that makes "the unlicensed possession of a handgun and ammunition away from one's home or place of business…a class C felony, subject to a mandatory minimum sentence of 3.5 years" with that license only obtainable by presenting a "proper cause" to the police, since "the Defendants have prevented Plaintiff Greco and virtually all other typical or average people from obtaining the license that is needed to exercise the right to bear arms for its core purpose, self-protection, while in the City of New York."

In a third suit filed in November by SAF, Call v. Jones, Maryland's carry permit laws are challenged on similar grounds, insisting that "Maryland has made clear that a general desire to carry a handgun for the purpose of self-defense—'the central component' of the Second Amendment [as per Heller]—is not a sufficiently good reason to exercise the right. Instead, according to Maryland, an ordinary citizen must provide documented evidence of concrete threats or recent assaults to obtain a permit from the state to carry a handgun in public."

Various federal appeals courts have come to a variety of different decisions on this question of restricting the right to bear arms outside the home, including the 9th Circuit's decision in 2016's Peruta v. San Diego that declared concealed carry can be constitutionally prohibited, the 7th Circuit's 2012 Moore v. Madigan which overturned an Illinois law unduly prohibiting citizens carrying guns outside the home, and the ongoing Young v. Hawaii case in the 9th Circuit, which in an earlier iteration (that many expect to be overturned by the Court en banc) protected open carry as a right not open to quick abridgment under the Second Amendment.

Carry permit laws are not the only ones the SAF hopes might eventually come before a Supreme Court with Barrett on it. Lawsuits in November also challenged California's regulations that restrict legal gun purchases to a state-produced roster of acceptable weapons (Renna v. Becerra) and Louisiana's regulations that prevent people ages 18-20 from purchasing guns (Reese v. BATFE).

The Firearms Policy Coalition, which is working with SAF on some of the above lawsuits, has also filed some fresh suits, including Cowey v. Mullen, which challenges Pennsylvania's coronavirus-related closure of its division that processes gun permit requests.

Adam Kraut, a laywer with the Firearms Policy Coalition, says in a phone interview yesterday that he's not discouraged by past anti-Second Amendment decisions from federal appeals courts. Kraut is encouraged by Justice Clarence Thomas' frequent complaints that the lower courts are "treating the Second Amendment as a second-class right, and you shouldn't do that."

NEXT: Brickbats: December 2020

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Well, since we only have free speech in our homes, and not in public, I don’t see what the fuss is about.
    It’s not like the constitution specifically says “shall NOT be infringed” or anything.

    1. As a progressive libertarian, I’m disappointed that Trump won the 2016 election and packed the Supreme Court with conservative gun nuts. Weapons of war don’t belong on American streets and a Clinton court would have curtailed the “right” to bear arms. This just goes to prove that libertarians should never compromise their values by voting for one of the two main parties, unless the Democrats create a platform that promotes an anti-racist agenda.

      1. Libertarians are not racial collectivists, or collectivists at all. What we oppose are Kristallnacht laws of the sort National Socialism backed up with the initiation of deadly force. This nameless sockpuppet is no less dangerous an infiltrator than the ku-klux rednecks and pious prohibitionists seeking (with some success) to make our platform into a confession of idiocy and load the party machinery with counterproductive whack jobs.

        1. Making money online more than 15$ just by doing simple work from home. I have received $18376 last month. Its an easy and simple job to do and its earnings are much better than regular office job and even a little child can do this and earns money. Everybody must try this job by just use the info
          on this page…..work92/7 online

      2. You think your comment is satire, but I’ve heard many anti-gun Liberals say the same thing in complete seriousness.

        1. Yeah, for a known parody account that was a really poor post.

      3. You know OBL already has this job, right? Or are you just trying to be a parody of a parody?

        If so try to add just a pinch of subtlety.

    2. The problem is not “infringement”” per se. The battleground has shifted to “the right to keep and bear arms” as a single whole phrase. It does not mean what the individual words say. It has always been understood to have natural limits, such as excluding prisoners, felons, infants, mental cases, etc.

      Just as “freedom of speech” is not explicit words, but a phrase which has always been understood to exclude libel, slander, military secrets, etc.

      The wrongness of this is especially scary because of that kernel of truth. I don’t know of anyone that argues that prisoners have the right to keep and bear arms, or that publishing military secrets is hunky dory. So they just extend that, creating penumbras and emanations where they see fit.

      1. And Jews… You left out the fact that it was “always understood” in Germany that felons, infants, mental cases and Jews would not be allowed to keep and bear arms. Right now there is a list of bills in the Texas legislature to lengthen the list the same way National Socialists lengthened the list–by adding more and more common-sense gun laws and expanding the meaning of felon.

      2. Except that there is no exception to freedom of speech of military/state secrets. Unless you have taken on a positive obligation to safeguard classified material, you have no obligation to safeguard classified material.

        . . . that publishing military secrets is hunky dory.

        I mean, sure – other than the Supreme Court of the United States.

        https://en.wikipedia.org/wiki/New_York_Times_Co._v._United_States

        And libel/slander are not forbidden. They’re generally not even illegal. They’re a civil offense – ie, the state does not go after you for libeling someone (as they would if you had committed a crime), the person libeled has to sue you. But there is no law preventing you from libeling/slandering someone. The courts even have basically no authority to tell you not to do it (prior restraint).

        You find the nuclear football sitting in a bathroom stall, it is perfectly legal for you to publish its contents. Its perfectly legal to tell the world that Biden eat his toe jam.

        As for your ‘natural limits’ – maybe those limits are wrong?

        Why should felons be stripped of the right to bear arms? Infants, of course simply can’t bear arms – but children can and do. ‘mental cases’ covers a whole lotta ground. It would seem the ‘natural limit’ extends to any adult who is mentally competent and not serving a custodial sentence.

        Once you move past that ‘natural’ line you’re starting to fuck over otherwise law-abiding people.

  2. Next – do civil asset forfeiture…

  3. Oh I am sure the government will find a way around it no matter what. We passed the slippery slope and went over the damn glacier a while ago. Now that neo communists are in again the bill of rights will be treated as a gift to friends of those power.

    1. No faith in the SC?

      I think 2a is safe for a few decades more at least.

      1. It wasn’t safe from Nixon in Moscow May 26, 1972.

      2. Well it’ll depend on Georgia to prevent any 7-6 Scotus decisions next year.

    2. The only thing worse than communists are those damn neo-communists. With the possible exception of crypto-neo-communists, I suppose.

      1. But the paleo-crypto-neo-communists are the worst.

        1. chemjeff radical individualist
          December.1.2020 at 10:40 am

          The flu doesn’t cause fucking encephalitis

          Hi Jeff we all know you’re rightly outraged by the Trumpapottmi dumbly ignoring the species killer Covid-19 but that is wrong.

          What Causes Encephalitis? Viral encephalitis may develop during or after infection with any of several viral illnesses including influenza,

          https://www.webmd.com/a-to-z-guides/understanding-encephalitis-basics#:~:text=What%20Causes%20Encephalitis%3F,infection%20including%20West%20Nile%20virus.

          I’m sure you were going to get around to correcting your easily avoided error any time now but I thought I could help you out. Toodles!

          1. Yeah, I evidently was wrong. Thanks for pointing it out.

            1. I’ve found that it’s usually a good idea to take a look at claimed unusual symptoms of covid. It often turns out that they are actually often associated with other respiratory viruses as well.

    3. They did. The Soviet Communist government got Tricky Dick the Quaker Republican to go to Moscow and sign a treaty to let that dictatorship tell our well-regulated militia what it could and could not bear by way of arms. This was May 26, 1972, when youths were fleeing the US to avoid enslavement in ‘Nam, and people of all ages were fleeing the entire Soviet Union to escape enslavement both in and out of the military. Looters in the Texas Legislature now have dozens of utilitarian-monster Kristallnacht bills straining to chip away at 2A.

  4. A modest advancement of the 2nd Amendment occurred in PA on Sunday, which was the first time Sunday (since PA regulated hunting) that hunters were allowed to hunt (for deer).

    Another theocratic Blue Law has been removed from the PA statutes.

    1. The 2nd Amendment isn’t about hunting.

      1. What, you think there’s a hunting exception to it?!

        1. Depending on the restriction, you can restrict hunting without triggering the Second Amendment at all. There is, for example, no plausible Second Amendment connection to the rule that you can only hunt deer during certain times of year or that limit the culling of does in order to preserve the game population.

          Blue Laws are religious restrictions limiting what you can do on Sundays in order to reduce your incentives to skip church. While Blue Laws are deeply suspect under the Freedom of Religion clause of the 1st Amendment, they are not properly challengable under the 2nd Amendment.

      2. I like that, because ‘deterrent ‘ should be an option.

      3. Or Fudds.

        Let’s use a Venn diagram. All hunters benefit from the 2A, but it is much larger than that.

  5. restricting people’s ability to carry their guns outside the home, an issue left unresolved by Heller.

    Wait a sec — I could have sworn I remember some discussion of “bear” meaning “to carry while ready to use”, and that restricting “bear” to inside a home was ridiculous on its face, so carry outside the home was a constitutional right, with the implication that either concealed xor open could be banned as long as the other was legal.

    1. That was 9th Circuit, I think. And they didn’t quite complete the circle.

      It’s ok to ban Concealed, because bear arms could mean Open.

      It’s ok to ban open, because bear arms could mean concealed.

      But they somehow failed to require that the state actually allow one of the two.

    2. Heller did not address possession outside the home.

    3. No where in the Heller decision or the McDonald decision or in the oral argument to either did you read or hear that either concealed carry or open carry could be banned so long as one was legal.

      You will hear in the oral argument Paul Clement citing Robertson v. Baldwin (1897) which said that prohibitions on concealed carry do not infringe on the Second Amendment. You will read in the Heller decision that Open Carry perfectly captures the meaning of the right to keep and bear arms. You will read in Section III of the Heller decision, the Section that tells us what the 2A is not, that prohibitions on concealed carry do not infringe on the Second Amendment right. That was explicitly the very first thing Heller said the 2A is not. Ahead of felons and the mentally ill not having a 2A right.

      All 9 justices in the Heller decision agreed on one thing and that one thing is concealed carry is not protected by the Second Amendment.

  6. Just some observations:

    Pride of gun ownership: Reserved for veterans, others whom have earned this privilege in recognized fact. This may mean open display in public, marches with blatant carry-weapon.

    Rights remain confined to peepshow limitations. Open carry in your own property bounds; but it is not a bragging right, only a necessity. We should be grateful to enjoy use of what were necessary.

    Confusing rights with unlimited power: the state has certain say in defining limits to such matters.

    Rights during police encounters: by amendment, and only possibly by policy of state or federal gov.

    There were natural interest by anyone just how far anyone may go in matters where boundary is not deniable.

    No one needs to ask permission to own or carry unless specifically being under valid punishment or correction for conviction of felonious crime, basically. Your plain reading of the Constitution equals universal rights inside the USA, so long as legal punishment nor legal discipline is not in force.

    For anyone under legal punishment or enforced legal discipline, or even peer groups representing the case of anyone under punishment, enumerated rights cannot be used as a blanket commonality.rights

    [END]

      1. I think he is having a stroke

        1. I think it boils down to the now jaded trope of “you can yell FIRE in a crowded theater,” which OW Holmes contrived to limit political speech he didn’t like.

          1. CAN’T yell…will Santa bring us an edit button this year?

    1. “Pride of gun ownership: Reserved for veterans, others whom have earned this privilege in recognized fact. This may mean open display in public, marches with blatant carry-weapon.”

      Well, fine. I’ll carry the gun and refrain from being proud about it, if it makes you happy.

  7. >>Various federal appeals courts have come to a variety of different decisions

    politicians in robes have come to a variety of different decisions. the law is clear.

    1. Diversity of opinion amongst lower courts of what SCOTUS is supposed to address [and not avoid as Roberts has so clearly done]

  8. These Kristallnacht laws chip away at the main thing, which is the Constitutional legality of These States keeping and bearing the nuclear weapons that ended all major wars. The fact that looter satrapies can also build them makes ABM and SDI systems more important still. THOSE are what Americans need to be zealous about. That Nixon gullibly signed the now-repudiated SALT treaties is proof the GOP cannot be relied on to provide for the common defense or support the Constitution. Search: “Second Amendment Antinuclear Weapons”

    1. what?

      1. Physics Today, April 1988, p. 90. Also (https://tinyurl.com/y7vbllo8)
        It is hard to imagine how anything about the Second Amendment could possibly be any clearer. The original argument has also been translated into Portuguese, and Wolfgang Panofsky–yes, THE Panofsky who knew Oppenheimer and them in 1943-45–disagreed, then recanted by lying about what he had said in Physics Today, June 1985 p.37. Europeans have a mental block against this, but that is their problem, not ours.

        1. “Socialists Against Buckminster Fuller Energy Slaves ”

          awesome

  9. I’m curious how much people in NJ might regret any expanded carry rights given how hostile the police are (or were based on my memories) to “regular people” owning guns. I can just imagine someone getting pulled over for a traffic violation and the cop nailing them to the wall once they see the person is legally armed. “Congratulations, here’s $1500 worth of violations for everything i could find, and some i made up!”

    Please note: i think ‘may issue’ is garbage, but NJ has been a trash heap for so long i can imagine it’ll take generations before any newly gained freedoms can be exercised without persecution.

    1. But if you’re afraid of that, having the right to carry doesn’t mean you have to. So what’s to regret?

      1. Having the right to but just without being able to, you mean?

        I understand North Koreans have the “right to” leisure and relaxation, among other things. And yet they starve.

  10. Remember the Cato guy who funded Heller wants a “libertarian magazine” limit of 20 rounds.

    1. Where do people come up with that shit? The 2nd amendment is in fact primarily about weapons of war.

      1. Look, the people who wrote it had just gotten done winning a revolutionary war against their own tyrannical government by using privately owned weapons of war. Clearly what they were concerned about was our ability to kill deer.

      2. Which would naturally mean the NFA, GCA ’68, and sections of FOPA would have to go. No modern soldier would be sent to war without at least a burst mode on the fire control selector.

  11. With a more solid majority of jurists on the Court with a record of respect for the Second Amendment now that Amy Coney Barrett has been confirmed, the Second Amendment Foundation (SAF), in collaboration with other plaintiffs and organizations, filed a flurry of November lawsuits attempting to extend the reach of the Second Amendment.

    Are you sure they’re filing this flurry of lawsuits because ACB is now on the bench and not for some other reason? Like because Joe “Hell Yes We’re Going To Take Your Guns” Biden is preemptively going to be the next President?

    1. *presumptively, not preemptively you stupid auto carrot

      1. Are you sure?

    2. Fun with Synonyms:
      When you regulate something, you are limiting something.
      When you limit peoples rights, you are abridging their rights.
      When you abridge people’s rights, you are impinging on their rights.
      When you impinge on peoples rights, you are encroaching on their rights.
      When you encroach on people’s rights, you are infringing their rights.

      So when you regulate and limit peoples rights, you are infringing their rights.

      Joe Biden’s website stated that he supported the second amendment, but that the amendment is “limited”. That is an abridgment, impingement, encroachment, infringement.

      As far as I can see, when Biden and The Cocksucker take the oath of office, to defend the Constitution, they will be perjuring themselves. They have already promised to abridge, impinge, encroach, infringe and limit a right in ways that are explicitly denied them by the Constitution.

      1. They have a different constitution

  12. Large numbers of Americans, who should know better, believe with all their hearts that the 2A in the bill of rights allows the government to let the military have firearms. It’s easy to blame our shitty schools for this, but a lot of our leaders who know exactly what the 2A is for have been perpetuating this lie for generations. Beto “Hell yes we’re going to take your AR15!” O’Rourke just barely missed becoming a senator in bloody Texas of all places.

    It’s clear to any who support the right of Americans to keep and bear arms that our 2A is in grave danger. The Supreme Court hearing these cases is huge. And if the court decides in favor of the people’s constitutional rights, you’ll have Donald J Trump to thank for it. His appointments of Gorsuch, ACB, and especially Kavanaugh were fought tooth and nail by the Democrats/Media/anti-gun coalition. All 2A supporters owe Trump a huge debt of gratitude for this, and in my opinion his appointees qualify him as a great president.

    1. the 2A in the bill of rights allows the government to let the military have firearms

      I am tired of the bullshit lies about the 2A. It clearly says “the right of the people to keep and bear Arms shall not be infringed”, where the 10A says “are reserved to the states respectively, or to the people”.

      How can anyone say with a straight face that ‘people’ in the 2A actually means state militias and not the same thing as ‘people’ in the 10A, who are clearly differentiated from the states and accepted to mean individuals?

      Fuck those guys. Shall not be infringed means what it says. If you don’t want Billy Bob to have an AR-15, pass a fucking amendment. I can’t believe that SCOTUS allows this to continue to be an issue.

      1. Oh, reserved to the states … like, ‘first come first served’ and everyone else gets scraps left by government.

        Yeah …
        ♠ Keep arms: national guard does it for everyone else to “represent” the people.
        ♠ Bear arms: people have to bear those wgo represent armoury tools.
        ♠ if you ain’t elected, it’s not your show.

        Maybe laws passed by the State apply only to those who work for the state. That hasn’t been my interpretation. But it may explain them for legislating away creative freedom to attach warheads to BB guns on-the-fly.

        1. “…attach warheads to BB guns on-the-fly.’

          Is there a video for that? I have long yearned to expand my 2A rights to include a personal nuclear arsenal. And don’t forget a strategic bomber and some ICBMs to deliver them.

          Fuckwad [by the way if this is supposed to be sarcasm or parody don’t quit your day job]

          1. Only looking at perverse interpretations, was, of readings based on someone looking to exploit unlimited power who believes that rights are nothing but (like) opiods to reduce the masses to confidence in … baseless interpretation.

    2. The 2A is just one right. They’ll be bad on a lot of others. If Trump would have nominated “libertarians” he’d be great, but the judges he did nominate, which are various degrees of conservative, makes him pretty poor imo.

      1. Sure, because “liberal” judges who love to employ intermediate scrutiny in interpreting constitutional rights are just so much better….

  13. This would be the same Barrett (along with Gorsuch and Kavanaugh) that wouldn’t even be on the bench if most Reason staffers got their way in 2016. But don’t worry guys, it’s not like your man Biden and his allies are considering packing the courts and proceeding by executive fiat or anything.

    1. There seem to be a lot of idiots in this country who, as long as the outcome was “desirable, fair, and just” would go with any means to achieve that end.

  14. I’d be bad for gun rights, but better for other rights. It just depends on which rights you think is most important.

  15. Why have Republicans been arming the militia people for decades and then try to steal an election (again)?

    I’m assuming everyone here is aware that the NRA was a scam and that their allegedly deep-felt belief in the right to a maximum arsenal is a mind fuck they perpetrated on you so you’d buy Wayne LaPierre a private jet?

    I don’t know if you’ve noticed, but the Trump people aren’t exactly keen on orderly democratic transitions. Let’s not arm them. How about that? Let’s keep the FBI on them so they don’t decide to go full-blown African shithole.

    But seriously can you believe you fell for a scam that got schools shot up by the dozens so the NRA could have swimming pools filled with your money?

  16. The standard procedure to obtain a NY City pistol permit is a fat bribe to the police department.

  17. I expect a law school webinar on mooting in early 2021 – how to issue executive orders and pass ordinances and laws at the state and local levels and moot them before they reach state supreme courts or SCOTUS. Democrats will enable a gorilla-tactics campaign to harass gun owners, drain their pockets of legal costs, and then blend back into state and local government. Sworn to uphold the US Constitution and laws of the State, they will look just like other elected/appointed government officials. But they are at war with the 47.7% minority who voted Trump in 2020, and will seek vengeance and retribution while racking up a pension.

  18. “According to Maryland, an ordinary citizen must provide documented evidence of concrete threats or recent assaults to obtain a permit from the state to carry a handgun in public.”

    If you’re being raped, don’t worry–just call the police, and we’ll send a man with a gun to come protect you!

    Why aren’t feminists upset about this?

    1. It never ceases to amaze me how most people are incapable of imagining a future that’s not exactly like their present. Also, “feminist” is no longer a word, as far as I can tell. You have to identify which faction of feminism you are talking about… and good luck figuring out what they are and what they want.

    2. Ken, big believer of rape victims. In what other context would you suggest letting women claim rape and therefore the right to be jury and executioner on the spot?

Please to post comments

Comments are closed.