Gun rights return to the Supreme Court for the first time in more than a decade

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Wednesday marks a showdown over guns at the legal OK Corral. The Supreme Court is hearing arguments in its first major gun case in more than a decade, and the new Conservative supermajority looks poised to make gun regulation more difficult.

Listen to the arguments live starting at 10 a.m.ET.

In 2008, the High Court first ruled that the Second Amendment right to keep and bear arms grants individuals the right to keep a gun in the home for self-defense. But after that, for all intents and purposes, the court was silent on gun rights, even as years went by with over 1,400 cases filed to challenge existing gun regulations.

Now has come the long-awaited moment for gun rights advocates, as the tribunal examines how far a state can go to regulate an individual’s right to carry a gun outside their home.

What is it about

The test case comes from New York, which, along with seven other states, has the most restrictive laws in the United States for carrying guns outside the home.

Under New York’s “Good Cause Act”, people applying for a license to carry a concealed weapon outside the home must show a real need for self-defense, a “good cause.” “. Permits are limited to those who go hunting or shooting and those who can demonstrate a need for self-protection, such as bank couriers carrying cash or shop owners who wish to keep a weapon. in their store to protect themselves.

New York does not allow port permits out of general desire for self-defense. Instead, the law requires applicants to demonstrate that they have a special and particular need to carry a firearm.

The New York State Rifle and Pistol Association, which is a branch of the National Rifle Association, and two men living in upstate New York are defying the law. One of them received a license to carry a gun to travel to and from work, and both obtained a license to carry guns for the practice of hunting and shooting. But they were both denied the right to carry weapons outside the home on general grounds of self-defense.

What each side says

Former United States Solicitor General Paul Clement, who represents the challengers, will tell the High Court on Wednesday that the right to bear arms outside the home is like the right to free speech or whatever another constitutionally guaranteed right.

“These are all rights that the founding generation considered important enough that we enshrined them in the Bill of Rights,” said Clément. “And I think this judgment means that states have to respect those rights.”

Not so fast, retorts Richard Dearing, head of appeals for New York City.

“I don’t think we can forget that we are talking about an instrument designed to kill people,” he said. The problem the challengers have, he argues, is that “public safety considerations are so huge and varied on the gun regulation side in a way that is not equally true for other rights.”

The question of the regulation of local communities

Among the 87 briefs in the case, there is one filed by a group of Justice Department officials from previous Republican administrations. Among them is J. Michael Luttig, who served for 15 years as a judge of the Federal Court of Appeal, having earned a reputation as one of the most prominent and conservative judges in the country. .

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He argues that a close examination of the history and tradition of gun regulation in the United States makes it clear that the founders believed that state and local governments should be free to regulate the carrying of weapons, concealed or not, in public.

“New York has a less restrictive regulatory regime than even the laws of the founding era, which largely banned public transportation with no exceptions,” he says.

But Clement countered that there is no record of prosecution under these laws, and he maintains that New York law places unconstitutional discretion in the hands of state regulators. It is one thing, he said, for a state to prohibit criminals from carrying firearms. But it is quite another thing to say that “you have no criminal record, you have done nothing wrong … and yet you still cannot assert your constitutional right to carry your gun outside.” of the House “.

Dearing responds that these decisions are not made by small bureaucrats. They are made in rural upstate New York by judges and in New York by law enforcement officials. Plus, he says, the rules in rural areas are looser than in New York City, where the population is by far the densest in the country.

Indeed, as he points out, New York City’s population of 8 million is crammed into just 303 square miles, resulting in a population density of about 27,000 people per square mile. More than 5.5 million people use the city’s subway daily, and Manhattan’s daytime population reaches 4 million on a typical weekday.

“Law-abiding citizens can in an instant become lawless citizens in a moment of passion, a moment of dispute, and incidentally, increasingly in times of political disagreement,” Luttig adds. And he focuses in his memoir on the statements of many rioters who stormed the Capitol on January 6, who said they left their guns at home because of District of Columbia laws that make it illegal to wear weapons in public.

“Consider (…) the exceedingly greater difficulties the police and national guard would have encountered if a significant number of demonstrators on January 6, 2021 had been armed with loaded weapons,” he and other former senior officials wrote. of the Ministry of Justice. A broad harbor fee, they say, “would throw gasoline on the fire of our nation’s future political conflicts.”

That’s why, as Luttig told NPR, the history and tradition of the Constitution essentially gives legislatures the boost, if you will, to regulate the public carrying of firearms.

What the conservative court could do

Clément responds that allowing citizens without a criminal record to carry a gun outside the home does not mean that local governments can never ban guns in sensitive areas. He notes that there are hundreds of Supreme Court decisions dealing with the limits of the First Amendment, for example, and he notes that this is only the first case to explore the limits allowed by the Constitution on the right of carry arms outside the house.

That said, so far he has not proposed a principle to guide such exceptions to the rule he advocates of generally allowing people to carry firearms concealed in public.

“We’re not telling the court what the limiting principles are because I don’t think that’s the case to expand the scope of the limiting principles,” Clement said. “We think this is a pretty extreme law which assumes that if you are an ordinary citizen you cannot carry a gun at all to defend yourself.”

The majority of courts for over a decade have dealt with the issue of gun rights with a sidelong glance. But with President Donald Trump’s appointment of three new judges, that equation has changed. Judge Neil Gorsuch has weighed in as a staunch supporter of gun rights, and while Justices Brett Kavanaugh and Amy Coney Barrett live up to their records as lower court judges, there is now a majority in the Court Supreme to firmly support gun rights, potentially at the expense of public safety concerns.

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