Second Amendment

SCOTUS Will Decide Whether the Right To Bear Arms Extends Beyond Your Doorstep

New York, like several other states, limits public carrying of handguns to the favored few.


While it may seem obvious that the constitutional right to "keep and bear arms" extends beyond the home, federal courts have been debating that question for years. This week the Supreme Court agreed to hear a case that could finally settle the issue, which the petitioners call "perhaps the single most important unresolved Second Amendment question."

The case involves a New York law that requires applicants for handgun carry licenses to show "proper cause," which according to state courts means more than a "generalized desire" to "protect one's person and property." Applicants must "demonstrate a special need for self-protection distinguishable from that of the general community," which in practice means that ordinary New Yorkers have no right to armed self-defense once they leave their homes.

The vast majority of states are less demanding, typically requiring that people who want to carry concealed handguns meet a short list of objective criteria. But several states have laws like New York's, enforcing subjective standards such as "good cause" (California), "proper purpose" (Massachusetts), "justifiable need" (New Jersey), "good and substantial reason" (Maryland), or a special "reason to fear injury" (Hawaii).

In the case that the Supreme Court will hear this coming term, the New York State Pistol & Rifle Association, joined by two New Yorkers who unsuccessfully applied for carry permits in Rensselaer County, argues that such policies transform a "right of the people" into a privilege enjoyed only by the favored few. "A law that flatly prohibits ordinary law-abiding citizens from carrying a handgun for self-defense outside the home cannot be reconciled with the Court's affirmation of the individual right to possess and carry weapons in case of confrontation," the petitioners say.

They are referring to the landmark 2008 case District of Columbia v. Heller, which overturned a local ban on handguns. While that decision focused on the right to "use arms in defense of hearth and home," it more generally recognized "the individual right to possess and carry weapons in case of confrontation."

The possibility of being confronted by violent criminals, of course, exists in public as well as private. "Like the threats that might precipitate a need to act in self-defense," the petitioners say, the right to bear arms "necessarily extends beyond the four walls of one's home."

Two other aspects of Heller reinforce that argument. The Court said its decision did not "cast doubt" on "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings," a caveat that would have been unnecessary if the right to armed self-defense were limited to the home, and it described bans on the open carrying of pistols that were overturned by state supreme courts in the 19th century as "severe restriction[s]."

Two federal appeals courts, the 7th Circuit and the D.C. Circuit, have agreed that the Second Amendment protects the right to carry firearms in public. But the 2nd Circuit, which rejected this lawsuit, concluded that New York's regulations are constitutional, and four other appeals courts—the 1st, 3rd, 4th, and 9th circuits—have upheld similar policies in other states.

Last month, the 9th Circuit went so far as to declare that the Second Amendment has no bearing at all on a state's authority to impose a virtual ban on public carry. In a blistering dissent, Judge Diarmuid O'Scannlain complained that the majority's position "reduces the right to 'bear Arms' to a mere inkblot."

O'Scannlain and Judge Jay Bybee, who wrote the majority opinion, both delved extensively into the historical background of the right to bear arms, early gun control laws, and 19th century decisions rejecting or upholding them based on state analogs to the Second Amendment. The Supreme Court will now have to revisit that territory.

Because of laws like New York's, the petitioners say, "tens of millions of citizens are being deprived of individual, fundamental rights guaranteed by the Constitution." Whether that situation continues will depend on how the Court resolves this circuit split.

© Copyright 2021 by Creators Syndicate Inc.

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  1. Forget the “in case of confrontation”. The right to bear arms stands on it’s own without a subjective qualifier that can be argued separately. Similarly, the “just cause” needs to be answered with, “2A eliminates the need for any cause, let alone one that the government subjectively decides what is just. Therefore the law is moot and unconstitutional.”

    NY purposely leaves this vague in an attempt to fill in the details later and trying to not give the court a reason to overturn the law because of lack of specificity. That way they only have to argue later what qualifies as just cause, of which there are literally unlimited permutations to word it.

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    The Democrats constantly tell us they’re the ones fighting to end systemic racism, but when given a simple opportunity to stop ongoing (not “historical”) discrimination happening TODAY against Asian-Americans, Senate Democrats did a party-line vote to maintain systemic racism. [Link]

    What you’re looking at here (repeated) is the vote breakdown on the so-called Cruz Amendment to the #StopAAPIHate bill. Republicans nearly all supported it. Democrats rejected it to a person. Stop “AAPI hate” performatively while maintaining anti-Asian discrimination explicitly. [Pic]

    The further context of this bill and this amendment is that many American colleges and universities discriminate against Asian-Americans in the name of equity (aka Affirmative Action). Senate Democrats want to maintain that and use taxpayer money to try to maintain it.

    Democrats then went on the attack against Senator Josh Hawley (R-MO) for voting against the unamended “Stop AAPI Hate” bill, but Hawley voted FOR the amendment, implying that his lone no vote was principled and courageous–and no such good deed goes unpunished.

    This is yet another example of Critical Race Theory and its perverse goal of “equity” rearing its ugly head in our society. Apparently, equity *requires* actively discriminating against Asian-Americans in our society today (and who else tomorrow? Latinos?). Did you realize that?

    The truth is, there is actually systemic racism being installed in this country, and it’s in full-swing. The name of that systemic racism is “Critical Race Theory.” It enables blatant, intentional institutional racism with the full support of Senate Democrats (not Republicans).

    The truth is, Republicans (especially in the Senate) need to learn how to respond to this, to use this vote on this amendment to point out that the Democrats are using symbolic bills to look progressive while literally voting to maintain racism. This should be pointed out often.

    I’d strongly encourage that the result of this vote get as much attention and publicity as possible. Once you understand what happened here, it’s staggering. Articles, op-eds, everything should be hitting it again and again to force the issue into the open. Racist Dems, w/ proof.

    I’m actually a bit staggered that the Senate Democrats literally did a party-line vote to maintain literal institutional and systemic racism under the guise of saying they’re doing the opposite, and so little has been done with this obvious fact.

  3. I have been following these cases closely and reading the filings in front of the courts. I can almost guarantee that the SCOTUS won’t resolve this issue, they lack the courage to do it. What they will do is instruct the lower courts to use strict scrutiny when evaluating the government’s arguments. Then they’ll send the case back to the district court to rule again on it.

    If by some act of God they actually rule that “justifiable need” is unconstitutional, it would change the laws of seven (or is it nine) states overnight. In regard to the NJ lawsuit on hold in front of the SCOTUS, it also doesn’t mean that people in NJ will be able to get a CCP the next day. NJ will put some other BS scheme in place that is wholly unconstitutional knowing that it’ll take years to get to the SCOTUS again; and in the meantime people in NJ will have no ability to protect themselves outside of their homes.

    That’s why I think the courts will say at a minimum that the 2A does apply outside of the home and that lower courts need to apply strict scrutiny to the state laws. “Justifiable need” should fail strict scrutiny (it should also fail intermedia scrutiny) but that only means states have to fix that part of the permitting process. States could still loosen this requirement and make it difficult.

    But it is refreshing to see the SCOTUS start addressing some of these longstanding and outstanding issues.

    This PDF was filed as an amicus brief to the NJ lawsuit. It’s an excellent read if you have the stomach for legal filings:

    1. Interesting that SCOTUS can find same sex marriage in the Constitution and order all States to immediately begin issuing marriage licenses to same sex couples, on demand;

      but the same court struggles to find the right to bear arms and lacks authority to order all States to immediately begin issuing concealed carry permits, on demand.

      It’s a damn shame the Constitution was not written in plain English.

      1. Oh, it is written in plain English all right. It is just not read in plain English.

    2. “That’s why I think the courts will say at a minimum that the 2A does apply outside of the home and that lower courts need to apply strict scrutiny to the state laws.”

      Agree; given the diversity of opinion among the lower courts, I do not see how SCOTUS can, in all honesty, continue to avoid the issue.

      Mandating the application of strict scrutiny would in fact be a victory for gun rights; perhaps not the victory we want now [as in immediately nullifying the unconstitutional laws of 9 States] but an important victory nonetheless. At least a step toward legitimizing the 2A as more than a virtual stepchild of the BOR.

    3. One hopes it will be “strict” rather than something weaker, but I’m pessimistic.

      Prediction: after it settles out, the result will be that states have to enumerate and justify the places and persons who can’t carry, so the default is outside carry is allowed and permits “shall” issue. But the list of exceptions will be large and fairly weak justifications for those exceptions will be accepted.

      I’m guessing in places like NY it would end up that anyplace other than a public street or a private home/club is an exception, and anyone who’s had more than a parking ticket, or who’s ever been noticed in any way by CPS/psychiatrist/social worker will also be an exception. Not good but better than what they have now.

      1. I think that prediction is generally accurate – except that the list of exceptions is not going to be as ‘wide enough to drive a truck through’ as you think.

        The whole point of the SC opining on this is to define the scope of what part of 2A is incorporated v the states. No purpose is served by having the SC enter the fray only to tell the federal appeals courts and states that they can do whatever they want.

        Idk the specifics of what 5+ judges will agree is the scope of incorporation. My guess is that ‘self-defense’ as a rationale for carry license will be interpreted very broadly. ‘Persons who can’t get that license’ will not be within the state’s purview to decide except in a pretty limited administrative type of way. ‘Places where carry can be limited by states’ will be defined as specific places where ‘self-defense’ is not individually determined but is an overt responsibility of that land owner. Meaning govt buildings (including transport hubs) and private businesses can decide not to allow carry on their premises.

      2. In NY, serial gropers will have armed guards provided to them by the state.

  4. It’s gotta be killing Rev Kuck to see this many Sullum articles in a row. Sucks to be him.

    Back to my chili.

  5. I’m inclined to support the individual right, even though I have no desire to avail myself of it. But it comes with a huge responsibly. The point of the 2nd Amendment is to defend each other, and it bothers me how many people will say, “Protect yourself, asshole.” Why should I stand up for your right if you won’t use it to defend me? That’s also what many people will think.

    If you are silent when someone insults me for expressing my position on the issue, that’s fine. But then you have no right to complain when the judge rules against you, nor any right to intimidate the judge (or the journalist who reports the bad news).

    1. “The point of the 2nd Amendment is to defend each other, ”


      1. The people that want to take your guns away believe that. They have people carrying guns to protect them.

      2. “We are all in this together, comrades!”

      3. Agreed, it’s there to defend a tyrannical government.
        “A well-regulated Militia, being necessary to the security of a Free State, the right of the people to keep and bear Arms, shall not be infringed.”

        Self-defense was not the concern. “… necessary to the security of a Free State,…” It says it right there.

        1. BTW, I was agreeing to D-Pizzle.

    2. The point of 2A is most certainly to protect yourself. When seconds count the police are minutes away.

    3. “The point of the 2nd Amendment is to defend each other…”

      Even in CA, deadly force is legal when defending one’s self, or others, from such force which would cause death or serious bodily damage. The logical extension of this is that such force can be used to defend communities.This can be traced from the Anglo-French 13th century laws of “Hue and Cry,” which required people to both alert and assist the law in helping capture criminals fleeing the scene of a crime.

      There is no “requirement” of which I am aware for someone who witnesses a crime, these days, to intervene. Yet, it does happen more often that one might expect. But none of this has any bearing on the right to self-defense.

      1. 2A is a huge responsibility. If you reject any obligation to defend others then don’t expect them to defend your right. And you cede the right to threaten to resort to violence against judges or journalists when things don’t go your way.

        (I say this in response not just to you but to all the other responses here.)

        1. ” If you reject any obligation to defend others then don’t expect them to defend your right.”

          I defend the rights of others, even people I don’t like, every time I cast a vote. I certainly don’t “reject” that obligation. On the other hand, I have the freedom to determine the extent to which that obligation applies in any given circumstance.

          And, by the way, except for one would-be burglar a few decades ago, I have never had the need to threaten ANYONE with any kind of violence.

    4. You are confused…and it shows.

  6. Do we carry our inalienable rights beyond our doorstep or not?

    SCOTUS doesn’t have the authority to change the constitution.

    1. On the contrary, SCOTUS has given themselves authority to change the Constitution at will.
      Abortion, no problem.
      Same sex marriage, obviously.
      Bear arms? You mean short sleeve shirts, sure, why not.

      Kelo proves that if someone important wants your property, government can take it and give it to them.

      1. Do you want to see the suckers that let that happen?

        Look in the mirror.

      2. The constitution is ostensibly a secure document, but the dictionaries that give the words of the constitution meaning aren’t.

        1. which is why we need originalists on the bench. what the 2021 dictionary says is irrelevant. what matters is what the authors intended.

          1. While I would agree, the founders were not gods, just men who had similar values.

            What were those values?

  7. Nope not in my state won’t matter what their ruling says.

    1. Don’t know your State, so do not know if that is a good or bad thing [and I suppose that depends on your perspective on a given issue].

      But if we are going to argue in favor of nullification, we will have to accept that living in New Jersey is going to be a lot different from living in Montana [besides the climate].

  8. Argument you will not hear at SCOTUS:. “The phrase ‘shall not be infringed’ is rather absolute. This is unequivocally an infringement.”

    This should be a layup, if anyone on the court could read plain English. Yet the notion of simply applying the direct language of the constitution is so radical that no one will even dare bring it up.

    As long as we continue to have unwritten qualifying phrases like “unless it leads to policy outcomes I disagree with” attached to our constitution, we will not have “a nation of laws, not men.”

    1. Slightly off topic, but I’ve seen an interesting argument that incorporating the BoR to apply to states actually weakened what really were supposed to be absolute, no exception rights.

      For example, the usual “shouting fire in a theater”, which is always a stalking horse for some larger attack. If you’d asked James Madison, I believe he would have said no, the *federal* government cannot even ban shouting fire in a theater. But maybe Connecticut could.

      Likewise for the 2nd amendment. One might ask about a person who is on parole after three armed robbery convictions. Again, the answer before incorporation would have been that no, the *federal* government could not prohibit such a person from bearing arms, but a state could.

      Once you appled the 1st and 2nd to the states, then there had to be excpetions, and then the feds got to use the exceptions also.

      1. Funny how that works. The 9th and 10th amendments, and heck the entire formulation of the Constitution is a limited grant of strictly enumerated powers to the federal government are on the trash heap of history… But the 14th? Yeah, that one is alive and well for the purposes of gutting the 1st and 2nd.

  9. I’m still trying to find where the constitution says rights are limited to the home. Can’t have free speech if i’m limited to my home, can’t have freedom of association if I’m limited to my home and can’t have freedom of movement if etc…….

    1. Actually, it’s even simpler than that. The Second Amendment protects “the right of the people to keep and bear arms.”

      1. ^

    2. Including the right to bear arms makes no sense unless it applies outside of the home.

      1. ^

  10. The reason democrat States want to declare the 2nd Amendment void is because they fear the people might return fire!

  11. If you like your guns, you can keep your guns. Just only at your house.

    1. And you can’t actually use them.

  12. the author’s mixed use of the terms license and permit creates confusion. there are differences for certain. in a “shall issue” state you typically get a “license”. its a license because i don’t need permission. i just need to show that i’m not a felon. in the 8 “may issue” states you typically get a “permit” because in those states carrying a firearm depends on the gov granting permission. in a sane world the whole country would be governed by constitutional carry and the gov would have no role.

    1. This can vary, county-to-county, within a State. CA has several counties which are “shall issue” (issued on completing a safety course, and the one I took, was just that — including how not to get shot by the police when they see you are carrying). Note, these counties are, from what I can tell, smaller, rural counties.

      1. very true. i have family in fresno county and getting a concealed carry permit there is very easy. but that is very unfair to the people in la county who are ruled by tyrants.

        1. +

  13. When the government dictates the who, what, when, and / or where they have taken the right and converted it into an indulgence granted only to assorted courtiers.

    The first purpose of the Second Amendment is too often overlooked, fostering a liberty of mind and action necessary in the individual citizens of a free republic.

    “There is one thing in the world more wicked than the desire to command, and that is the will to obey.”
    ~ William Kingdon Clifford

  14. A right subject to the whims some future legislature or judge is no right at all. Those unalienable rights in the Bill of Right are off limits to any branch of government.

  15. NYC’s unconstitutional (null & void) gun laws were not exposed by the SCOTUS. Why? The constitution means whatever govt. says it means, pointing out the fallacy of giving away all political power and expecting to be protected instead of exploited, e.g.,expecting justice.

  16. So… I disagree with the local opinions. 2A protects your right to own weapons of war in case of tyranny or Indian invasion.

    14A protects your right to personal defense in public. As such I don’t think that right is quite as unencumbered but I do think NYC goes too far.

    1. I am interested. What loophole do you see in the phrase “shall not be infringed”?

      Here is a handy definition of infringe

      “act so as to limit or undermine (something); encroach on.”

      So let us do a little substitution for clarity.

      The right of the people to keep and bear arms shall not be limited, undermined or encroached on.

  17. When the SCOTUS rules against rights, who will protect us from our protectors? Each of us has rights that cannot be taken, only denied or ignored by even us. I have never recognized govt. as having the power to rule over me, only to protect me. When it violates my sovereignty (rights) and tells me it’s for my own good, I am not convinced. But govt. doesn’t care. Govt. only pretends to be a protector to defraud, e.g., pretend to be a parent over our political immaturity. Anyone who expects you to stop judging them and trust them to think for you is NOT your friend/protector.

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