Guns

SCOTUS Revisits Gun Control

"The Second Amendment does not exist to protect only the rights of the happy few who distinguish themselves from the body of 'the people' through some 'proper cause.'"

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In the 2008 case District of Columbia v. Heller, the U.S. Supreme Court ruled that Washington, D.C.'s handgun ban was invalid because it violated the constitutional right to armed self-defense. Two years later, in McDonald v. Chicago, the Court said states also are obligated to respect that right. Because both Heller and McDonald addressed laws banning handguns within the home, the Court left unresolved how the right to keep and bear arms applies in public.

In April, the Supreme Court announced it would consider that question when it hears arguments in New York State Rifle & Pistol Association v. Corlett. At issue is New York's requirement that anyone seeking a license to carry a concealed handgun in public satisfy a local official that he has "proper cause" to do so.

What counts as "proper cause"? According to the U.S. Court of Appeals for the 2nd Circuit's 2012 decision in Kachalsky v. Westchester, a "generalized desire to carry a concealed weapon to protect one's person and property does not constitute 'proper cause.'" In other words, basic self-defense is not sufficient.

"A law that flatly prohibits ordinary law-abiding citizens from carrying a handgun for self-defense outside the home cannot be reconciled with the [Supreme] Court's affirmation of the individual right to possess and carry weapons in case of confrontation," argues the New York State Rifle & Pistol Association. "The Second Amendment does not exist to protect only the rights of the happy few who distinguish themselves from the body of 'the people' through some 'proper cause.' To the contrary, the Second Amendment exists to protect the rights of all the people."

At least two justices seem ready to agree. In 2017, Clarence Thomas, joined by Neil Gorsuch, dissented from the Court's refusal to hear a case that asked whether the Constitution protects the right to carry guns in public. "As we explained in Heller," Thomas wrote, "to 'bear arms' means to 'wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.' The most natural reading of this definition encompasses public carry…..I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen."

If at least three other justices agree, this case could go down in the books as another landmark victory for Second Amendment advocates.

NEXT: Brickbat: I Guess You Can Say That

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  1. I have no problem with them requiring cause for a license to concealed carry – but if they do that, then they have to allow unlicensed open carry.

    1. I doubt it will be a trade-off. And, generally anti Bill of Rights activist bureaucrats, policy-makers, and judiciary prefer to chip away at individual freedoms in the name of collective safety, the children, perceived racism, et cetera.

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    2. What about those emanations and penumbra of privacy?

      Or was that just a smokescreen?

    3. Are there any other constitutional rights you’d like to pursue a license to exercise?

      1. Cake baking?

        1. No citizen actually needs chocolate cake.

      2. Read the comment more closely. Concealed carry is not an enumerated right. Neither is open carry. The enumerated right is to “bear arms”.

        A state can reasonably choose between allowing concealed or open carry. Further, if a state allows both, it could reasonably restrict one of them. What it can’t do is prohibit (or even substantively restrict) both simultaneously.

        To make a First Amendment analogy, the decision to allow open but not concealed carry could be considered a neutral “time, place or manner” restriction.

        1. The Constitution doesn’t grant rights, it limits what the government can do to restrict them. I don’t need it spelled out that I can concealed carry without a permit, I need it spelled out that they can regulate it. Absent such language, I have the right by default.

          Instead of using that language, they went with “shall not be infringed”. Telling me I need to pay for a license to exercise my rights in the manner I see fit is an infringement. It’s not “shall not be SIGNIFICANTLY infringed”, or “shall not be infringed unless the state would like to generate revenue from a licensing scheme”, it’s just “shall not be infringed”.

          2A is not actually etched into stone, there’s even a process written in the Constitution for how to change these things. If the plain language of 2A doesn’t suit our current society we simply need to amend the Constitution.

          And there’s no good 1A analogy here since there’s no commons issue at play. My carrying of a gun doesn’t impact anyone else in any way regardless of whether it is concealed or not. The restrictions on 1A exist because not everyone can have the public square at the same time, and public speech can actually affect other people (e.g. using a bullhorn outside someone’s window at 3AM). There’s no such conflict with concealed carry, so the government has no legitimate interest in restricting my rights in the name of preserving someone else’s.

      3. Ownership of Legos?

    4. the constitution does not distinguish between open or concealed carry. its literally no ones business if a person is carrying.

    5. Constitutional carry. No license. 2A prohibits govt from requiring a permission slip.

    6. I do. What possible justification could there be for licensing concealed carry? Especially if you allow free open-carry?

    7. All gun control is unconstitutional and therefore illegal. Void in other words.

      You dont need government permission to own, build, or possess any Arm. Arms include rifles, knives, pistols, cannons, machine guns, ships, planes, bombs, rockets, tanks, mines, grenades, bullets, shells, lasers, or anything that is a future or past Armament.

      The fact the SCoTUS doesnt unanimously strike down all gun control laws sua sponte shows how far gone our federal branches are. Nearly all government officials are violating the constitution and their oaths of office to protect the constitution.

      The 2nd prohibits any infringement of the right to keep and bear Arms. Thats a prohibition against congress, the courts, the Executive, and states (14th A) from infringing on that protected right. No exceptions.

      1. Void laws are to be ignored.

        Drug laws are an example of that. The controlled substances act is unconstitutional as there is no enumerated power to ban products or services. Even the prohibitionists knew that they needed a constitutional amendment to ban alcohol.

    8. Then many will have a problem with you- the type who cannot quite understand the idiocy or contradiction of having to ask and pay a fee for permission to exercise their Rights.
      I revoke your Right to state in print anything stupid or voice it anywhere that someone might hear you.

  2. I’m still suspicious that the reason they have agreed to hear this case is because they think perhaps they went too far in Heller and McDonald and are looking for an excuse to pull it back in a little, to show some “balance” in the dispute.

    1. From what Thomas wrote, this doesn’t appear to be the case. He is has been sound on this issue.

      1. Unfortunately, Thomas is only one of nine justices. We know how the three stout liberals are going to view this case, I wouldn’t bet a plugged nickel on how Roberts, Kavanaugh, and Barrett are going to see it. It might just come down to them being willing to throw the liberals a bone to keep them happy, a political rather than a principled decision.

        1. I’m hoping Barrett lives up to her name in 2A cases, though I realize that’s a terrible basis for hope. But hey, I have so few reasons, I’ll take what I can get.

          1. Unfortunately she isn’t necessary for a Kagan decision joined by Breyer, Sotomayor, Roberts, & Kavanaugh. We all know Roberts and Kavanaugh seem to desire balance over principles.

        2. I don’t know if you consider Sotomayor as one of the liberal justices, but she’s actually been pretty centrist/leaning conservative since she’s been USSC.

          1. This is news to me. I must’ve missed something. Can you provide some examples?

    2. You read a different article obviously or have a reading comprehension problem.

  3. “As we explained in Heller,” Thomas wrote, “to ‘bear arms’ means to ‘wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.’…”

    And yet…

    1. and yet what??

  4. Longtime libertarian activist Michael Hihn has repeatedly explained that libertarians should demand comprehensive gun safety laws. That’s one of the reasons Koch-funded libertarians overwhelmingly endorsed Biden — now we have a President who can expand the Supreme Court by at least 4 RBG-style justices. If we’re really lucky the new progressive Court will overturn the silly notion of an “individual right to bear arms.”

    #LibertariansForGunSense

    1. Overwhelming? By my count most voted Jo Jorgenson with none/not voting in 2nd place (which really is the same as voting Jo Jorgenson). Oh and your girl no longer even works her anymore, don’t understand why you stay without those insightful Dalmia articles.

      1. I’m not sure what’s behind this (hopefully temporary) schism between Shikha Dalmia and Reason management. Nevertheless this is still the best place on the Internet for the issues I care about: open borders, legal access to abortion care throughout all 3 trimesters, ladydick in the women’s locker room (and women’s prisons, and women’s sports…)

        #ILoveReason

      2. I counted Biden only having one less vote than Jorgensen.

        That’s embarrassing for people claiming to be libertarian. 7 months in and there’s literally not a single metric that’s better now than under trump.

        More brown people in cages at the border. More black people dieing in the streets at the hands of other blacks. More unemployment. An accelerating expanding of the wealth gap (after it actually shrunk under trump), more warmongering, more unemployment, more inflation, etc.

        Theres literally nothing Biden has done right and we’ve got 3 more years for him to fuck things up even worse than he already has.

    2. you know, Lonewacko, I never manned up and apologized for the grief you received lo these decades.

      you are generally correct, and I should have acknowledged that years ago.

    3. Amen! Most people refuse to admit that these are gun safety laws and not gun control laws. If Democrats were interested in gun control, they would go after the handguns that cause most of the problems and not the long guns that account for a very small percentage of the problems. This proves that Democrats have no intention whatsoever of actually controlling guns.

      1. And how in the hell did you come that inane conclusion?? Gun safety laws?! “JerrysKids” must be special needs but far and away above your brain power.

    4. “…the silly notion of an ‘individual right to bear arms'”. This right, like infinite variations, derives from the right to life. Since all rights are individual because the group exists only as an abstraction, being a compilation of individuals, the word “individual” used as adjective for rights is redundant.
      Deny the right to be armed by citizens and citizens are free in theory only, not actually. Unarmed citizens will be controlled by armed officials. And you would call that “really lucky”?

      1. Through all your blather you could have simply said “We are ruled at gunpoint”. And we are and small wonder reading the comments. One sentence with a comma in the middle has befuddled the masses but The People have no problem knowing “The People” means the people, citizens and that “well-regulated” implies government controlled militia, army, police etc that are necessary but can be regulated by a tyrant. Then “comma”…

        1914 Ludlow Colorado, read about it, a militia sent by the governor to please Rockefeller whose coal miners went on strike. The militia began killing men, women and children. The miners were armed and able to defend themselves. I guess if the miners were not allowed firearms then a strike would never have happened and they could continue to be slaves. They were only paid by how much coal they mined. Shoring up timbers. putting down track etc was not counted as mining coal…oh, and all were in debt to the company store. It was the beginning of CF&I Steel in Pueblo, Colorado.

  5. If at least three other justices agree, this case could go down in the books as another landmark victory for Second Amendment advocates.

    However, one expects yet another punt based on some technicality or “lack of standing”.

    1. I think we pretty well know how 8 of them will go, and it will be 4 [Thomas, Gorsuch, Alito, and Barrett]and 4 [Roberts, Kagan, Sotomayor, and Breyer] ; I believe Kavanaugh is the wild card of the bunch, and I also believe the confirmation process broke something within him.

      1. He’s probably still wondering why those insurrectionists who stormed the Senate building during his confirmation hearing weren’t investigated and charged by the DoJ and FBI. It was the worst event since Pearl Harbor and 9/11 I’ve been told.

        1. Everyone is going OBL around here lately…I suppose when it gets to this level of Kafkaesque it’s about all you can do.

  6. 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: https://cdn.ymaws.com/www.anjrpc.org/resource/resmgr/legal_motions___briefs/filed_brief_mazahreh.pdf

    1. Well, instructing all courts to apply strict scrutiny would in itself be a victory; it would [SHOULD] prevent courts like the 6th Appellate from using such specious reasoning such as supporting an AWB, not because it would actually make anyone safer, but because it would make them “feel safer.”

      You know what they say about New Jersey; what like throughout the US had we not had a successful revolution, or lost the Cold War.

      1. When the objective is impossible, all you have is feelings.

    2. Having read Barrett’s past rulings on 2A I’m fairly certain Barrett, Gorsuch, Thomas and Alito will overrule NYS. I think Roberts will try to find a very narrow ruling to try to be in the majority. I’m optimistic about Kavanaugh for some reason joining the first four. If Roberts is successful at coming up with a narrow ruling that gets to 6-3, it could be strict scrutiny or something else. Overruling all “may issue” regimes entirely and requiring “will issue” permits applying objective criteria to all permit applicants would be the best possible outcome. If you look at the stats presented in the amicus briefs it is clear that NYS’s regime has basically ended any form of carry for the general population – only retired cops, friends of cops, and people in certain professions such as prison guards who are targets by the nature of their jobs are ever allowed. This means they recognize the importance of concealed carry to self defence for members or extensions of the state but are not willing to provide this to people who live in bad neighborhoods, or just like to be free to travel into bad neighborhoods when it is dark. There is no clearer usurpation of the constitution since Jim Crow voting restrictions and they all know it.

  7. “proper cause” = being necessary to the security of a **free** State

    In other words; Giving government a monopoly on Gun-Force is not a means to a **free** State. Ironically at the time Nazi’s are taking over the USA the 2nd Amendments purpose couldn’t possibly be clearer and expectantly Nazi Government is constantly and consistently trying to tighten their Gun-Force monopoly.

    1. Exactly, a free State is one in which people are free to do what they want, keep and bear arms for instance. Governments on the other hand are not free to infringe on the freedoms of the people. That’s pretty much the whole point of the Constitution – no State shall …, Congress shall pass no law …, etc.

    2. Q: How are Democrats like Nazis?
      A: They’re trying to take away people’s guns. Duh!

  8. IMO SCOTUS is irrelevant.

    The US federal government is post political. SCOTUS has no force available to impose the law and any attempt to uphold the law will result in devastating punishment from the government.

    It’s time.

    1. The best historical analogy I can come up with is the Roman Republic; at what point are we on their timeline? The reign of Commodious?

        1. Wanks as high as any man in Wome.

  9. Open carry is for idiots who need to show off for others. Open carry makes you a target and lets EVERYONE in the ares know that you have a weapon and invites them to liberate it from you.

    Put your Walter Mitty fantasies away.

    The ONLY time I want the bad guys to know that I am armed is when my first two warning shots hit center mass.

    1. Do you want violent confrontation? You invite it if you appear an easy target. Criminals tend to seek quick/easy victims. That’s why they attack “gun-free zones” and rob unarmed merchants, bypassing the armed ones. It’s only logical.
      But we will not see all the crimes NOT committed by cowards.

    2. Agree; I don’t open carry even when I’m in the woods [not that the big cats or bears care]. I do not want to play my hand and go “Defcon 1” until the situation calls for it. If I present a weapon I am committed to deadly force which will immediately follow absent immediate de-escalation [the perp turns and quickly withdraws; and then I am sure as hell going to be the first one to call 911, because if you don’t you can bet they will and cry victim].

      Not so sure about open carry as a deterrent. I think it would cause you more trouble than it would provide any level of security; leave ’em ignorant of the fact beforehand, and find out the hard way if anyone so chooses.

    3. You are tactically correct.
      There is also a political side to open carry.
      It normalizes the public seeing people wearing guns in public.
      When they see people with guns in Publix, Walmart and Ace Hardware and nothing happens, they think of guns as “normal”

  10. In Massachusetts, it’s referred to as “license to carry”, i.e. concealed or not doesn’t seem to be entering in to it. But how am I supposed to get this gun back to my home (which SCOTUS acknowledges that I can defend) without a license to carry it?

    I’m not trying to be obtuse, I simply don’t understand how the one doesn’t necessarily imply the other. Anyone care to explain?

    1. I can’t speak specifically to MA laws but in NYS (which is far more onerous and restrictive) that home permit comes attached with the right to transport it in your car on the way to and back from the range for practice. I would think this also includes transporting it in your car back from the store. The catch is that it is supposed to be in a lock-box, with the ammo not inside the handgun. MA is a lot less restrictive than NY in the sense that your permits are “will issue” meaning that the criteria to obtain a permit are objective, applied to all residents without bias, and there is no discretion involved. In NYS you basically have to justify to an official why you’d want to carry outside the home, and it is very much subjective and varies by county. Republican counties in NYS are much more likely to allow people they know who are “the right kind of people” carry permits and democratic counties deny, deny, deny…except for NYC apparently where bribing cops works (look it up, it was in the news).

  11. The founders were perfectly content with all manner of gun restrictions.

    It is now by law easier to carry weapons in Tombstone than it was in 1880. Bonus points: the weapons are significantly deadlier today.

    One barely wants to dip one’s toe into the sheer moral muck of this rube-goldberg rationalizations at the service of, get this, a deeply corrupt and bankrupt industry lobby.

    The arms dealer lobby. They just love the constitution!

  12. The Second Amendment does not say what people generally believe it to say. Read it carefully and think it through. It says two things.
    .
    First it says the a free state needs an armed population, the militia. Let’s not mince words. You and I are the militia. If one of the founders were brought alive to this time they would recognize organizations like volunteer firefighters, volunteer sandbaggers during floods and the Cajun Navy as militia. Our history has numerous records of communities banding together to resist violent attack. One can only wonder why such history is no longer taught.
    .
    Next the Second Amendment says the right shall not be infringed. Notice that it doesn’t grant the right. The right to keep and bear arms originates from outside the Constitution as a corollary to our unalienable rights in our Declaration of Independence. Big Gun Control’s wet dream of revoking the Second Amendment would not eliminate the right to keep and bear arms but create far bigger problems.
    .
    The Second Amendment tells the government to leave the right to keep and bear arms alone if the government wishes to remain a free state. A government that infringes on this right is becoming an increasingly oppressive tyranny. The Second Amendment is literally a tripwire for power seeking politicians. Only the most vile aspiring tyrants will choose to break that wire.
    .
    As a former LEO, I’ve seen the dark side of gun control. I’ve seen minority communities disarmed by Jim Crow laws left to the ravages of criminals. I’ve seen people murdered while patiently waiting for their concealed carry permit to be approved and I’ve seen communities abandoned by rent-seeking governments pandering to rioting mobs. Gun control does not mean an absence of guns; It means that only the government and criminals have guns. Who is protecting you?

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