And A Wail Went Up…..

Jun 24, 2022

Yesterday, the United States Supreme Court ruled that New York State’s longstanding requirement that gun owners seeking a license to carry a concealed handgun must demonstrate “proper cause” to do so was unconstitutional.

The 6-3 ruling reversed all lower court decisions upholding the New York law. It also tossed similar legislation modeled after New York’s law in five other states into the proverbial dumpster.

Not everyone was pleased.

President Biden released a statement expressing his “deep disappointment” and encouraging “states to enact and enforce commonsense laws to make their citizens and communities safer from gun violence.”

New York Governor Kathy Hochul called it a “dark day” for New York.

Others, like liberal loudmouth, er mouthpiece, Keith Olberman went, for lack of a better word, ballistic at the news. Olberman called for the dissolution of the Supreme Court. Others, like the hosts of The View quickly condemned the ruling as “out of touch with public sentiment.”

Mebbe so, but the law’s not about public sentiment. It’s about the law -as written. In a week where the Senate seems intent on nibbling away at our rights, this was a well-timed ruling.

Unless, of course, you are New York, or the other repressive states that have modeled their near impossible permitting processes after New York’s. But there’s not much doubt they’ll try something to circumvent the rulings. Ten years after the last landmark 2A rulings, Chicago and the District of Columbia have continued to essentially thumb their noses at the Supreme Court.

In the time since those rulings, Justice Clarence Thomas (author of yesterday’s ruling) described the Second Amendment as a “disfavored right in this court” due to the Roberts court’s refusal to hear other 2A cases.

For New York gun owners, the ruling is vindication of an ongoing assertion that New York’s requirements essentially meant virtually no ordinary person would qualify.

In his opinion, Justice Thomas endorsed that assertion:

“The constitutional right to bear arms in public for self-defense is not a ‘second class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,” Thomas wrote, “we know of no other constitution right than individual may exercise only after demonstrating to government officers some special need….That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.”

It didn’t take long for the responses from Second Amendment groups that had cautiously confided their belief that New York was headed for a big loss.

The National Shooting Sports Foundation’s Senior VP and General Counsel Lawrence G. Keane called it “a tremendous victor for the rights of all law-abiding Americans to exercise the pre-existing and God-given right to keep and bear arms for self defense. This establishes that ‘may issue’ permitting schemes that relate the Second Amendment to a second-class right that can be meted out by government bureaucrats are unconstitutional. The firearms industry is tremendously grateful to the U.S. Supreme Court’s faithful application of Constitutional rights.

Keane, however, says the decision points to another important fact: “the U.S. Supreme Court has set forth the correct test for evaluating whether a law infringes on the Second Amendment. The court rejected the ‘means-ends’ (interested weighing analysis) test adopted by lower courts since Heller and McDonald. This ‘means-ends’ test is based on retiring Justice Breyer’s dissent in Heller that was expressly rejected by the court in Heller itself. The court also made it clear that intermediate scrutiny is not appropriate and that the proper test is to look at the text, history and national tradition at the time of the founding as to whether a restriction violates the Second Amendment.”

“We are gratified that the high court has said there can be no bureaucratic prerequisite to exercising one’s constitutionals-protected right to bear arms,” says the Second Amendment Foundation’s Executive Vice President and founder Alan M. Gottlieb. “For too many generations, New York’s requirement has been the vehicle by which the constitutional rights of average law-abiding citizens have been deprived under color of law.”

“Government bureaucrats,” he continued, “have routinely been arbitrary and all-too-eager to prevent honest people from having the means to defend themselves against violent crimes outside their homes. The pattern of exclusivity - allowing only those with wealth and political connections to legally carry in public- has been an affront to the constitution for decades, and now officials in a handful of other states with similar arbitrary requirements are on notice they can no longer perpetuate what amounts to discrimination against the constitution.”

The eight other states with similar law are California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island.

Since it’s Friday, I’ll readily admit that almost anything that sends Keith Olberman, anyone on The View and much of the mainstream media into hysterics is usually fine by me.

At the risk of alienating the six or seven friends remaining from 30+ years in the “mainstream” - you’re wrong- again- when it comes to the law versus the court of public opinion. The job of all courts isn’t to make law. It is to correctly apply the law as written.

“This is a monumental win for NRA members and gun owners across the country,” says the National Rifle Association Institute for Legislative Action (NRA-ILA) executive director Jason Ouimet, “New York’s egregious law, which left its residents’ self-defense rights to the whim of a government bureaucrat, has been declared unconstitutional and must be change. New Yorkers will soon be able to defend themselves outside of their homes without first having to prove a sufficient ‘need’ to exercise their fundamental rights.”

Ouimet points out, correctly, the ruling does more than impact New Yorkers. “This ruling opens the door to rightly challenge the law in seven other states that still don’t recognize the right to carry a firearm for personal protection.”

Bruen is a major win for the People and for liberties our constitution was designed to protect,” says the Firearms Policy Coalition Law’s Director of Constitutional Studies Joseph Greenlee, whose work was cited favorably in the Court’s opinion, “Not only did the court confirm that peaceable people have the right to armed defense outside the home, but it denounced the ‘interest balancing’ test that lower courts have used to justify dozen of unconstitutional laws over the last decade.”

“Today’s decision,” he said, “will allow FPC Law to press our current cases and to challenge many laws that were upheld in prior cases, potentially allowing many of the freedoms lost to be restored in the years to come.”

Greenlee’s sentiment has been repeated to me more than once by leaders of other 2A organizations. Now that New York’s law has been declared unconstitutional, there are “more than a few” new suits coming for the states and municipalities that have followed the flawed New York model.

We need to keep sight of the fact that this has not really been a terrific week. As the Supreme Court has handed the Second Amendment a win, the Senate is still apparently hell-bent on rushing through their “Bipartisan Safer Communities Act.”

Yesterday, the NSSF released their position on the measure and, as you can expect, it’s not all positive. “We are thankful,” the statement reads, “the Senate proposal provides significant resources for mental health treatment and services. Most of the horrendous tragedies that have befallen our communities have involved unaddressed mental health issues. We are also heartened the proposal provides necessary resources to help enhance school security to help protect the most vulnerable.”

But….the review isn’t so positive for other elements of the legislation. Regarding the legislation’s position on firearms dealers, the NSSF says “the proposed legislation fails to provide clear and needed guidance for our industry - particularly those who are newly licensed- as to what constitutes a willful violation warranting a revocation of their license.”

And the so-called Red Flag law? “…if intervention involves removing a person’s firearms there must be strong Due Process protections in place.”

As of this writing, there aren’t. And it’s never safe to presume that a law won’t be taken to its extreme if there aren’t clearly stated “guardrails” to prevent any sort of overreach.

Thankfully, it’s Friday. And as always, we’ll keep you posted.

— Jim Shepherd