Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
For the first time in more than a decade, the U.S. Supreme Court will take a Second Amendment case, this one dealing with the right to carry a concealed handgun for personal protection outside the home, possibly setting the stage for a major upheaval of restrictive gun control laws in several states dealing with the right to bear arms.
Watch for the gun prohibition lobby to begin a feverish push for expansion of the high court. Legislation was introduced recently to add four seats, but a new Fox News poll released Monday shows a majority of registered voters are against packing the court. The survey shows 54 percent are against it, while 35 percent support the idea. A Rasmussen survey showed nearly identical results, with 55 percent of likely voters opposed and only 33 percent in support. The Second Amendment Foundation said it would challenge court-packing.
The case now in the spotlight is known as NY State Rifle & Pistol Association v. Corlett. It will be the first Second Amendment case considered by the court since the 2010 case of McDonald v. City of Chicago that nullified the Windy City’s handgun ban and incorporated the Second Amendment to the states via the 14th Amendment. Various news agencies have erroneously reported this is the first gun rights case since the 2008 Heller case was decided, establishing the Second Amendment protects an individual right to keep and bear arms not connected to militia service.
As noted by Alan Gottlieb, founder and executive vice president of the Second Amendment Foundation, which brought the McDonald case against Chicago, “This case was made possible by the Second Amendment Foundation’s Supreme Court victory in McDonald v. City of Chicago that incorporated the Second Amendment to the states via the 14th Amendment.”
In addition to NYSRPA, plaintiffs are Robert Nash and Brandon Koch. Plaintiffs are represented by attorneys Kevin M. Neyland, Jr at Kirkland & Ellis LLP in New York and Paul D. Clement, Erin E. Murphy and Kasdin M. Mitchell at Kirkland & Ellis LLP in Washington, DC.
Defendants are Keith M. Corlett, superintendent of the New York State Police, and Richard J. McNally, Jr., a justice of the New York Supreme Court, Third Judicial District, and Licensing Officer for Rensselaer County, in their official capacities.
The question, in this case, is simple: Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.
The Washington Times suggested that plaintiffs “brought the case to the high court arguing the Second Amendment gives them the right to possess a firearm outside the home.” Rights advocates have repeatedly insisted the Amendment doesn’t “give” anything to anybody, but protects a fundamental right from government infringement that predates the Constitution.
As noted by CNN, “The court’s move highlights the impact of Justice Amy Coney Barrett’s presence on the newly solidified conservative court. Justice Clarence Thomas and others had been urging the justices to take up the issue, and just last term, the court declined several cases.”
Bringing balance to the federal courts may wind up being Donald Trump’s lasting legacy. He was able to appoint Barrett along with associate Justices Neil Gorsuch and Brett Kavanaugh, along with some 200 federal judges to the lower courts.
According to NBC News, the court “agreed to hear a challenge to a New York state law that allows residents to carry a concealed handgun only if they can demonstrate a special need beyond a general desire for self-protection. The law “makes it virtually impossible for the ordinary law-abiding citizen” to get the necessary license, said Paul Clement, a lawyer representing the challengers.”
Last year, the court declined several Second Amendment cases, of which about half were submitted by SAF.
The court’s refusal to hear gun rights cases since 2010 was no small concern of Associate Justice Clarence Thomas. He has, as noted by NBC News, “repeatedly criticized his colleagues for turning down similar cases in the past.
“The right to keep and bear arms is apparently this Court’s constitutional orphan,” Thomas wrote in one dissent, NBC recalled in its report on this new development.
New York offers a target that could have a far-reaching impact if the court rules in favor of the plaintiffs. In the Empire State, according to NBC News, “anyone seeking a license to carry a concealed weapon must demonstrate ‘a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.’”
Constitutional Carry Map March 2021
Many states have adopted “shall issue” statutes that do not require showing a “special need.” Nineteen states have what is generically called “constitutional carry” laws that forego the necessity of obtaining a permit to carry a firearm in public. Other states with such restrictions include New Jersey and Maryland, so much is at stake with this case.
Gottlieb noted SAF currently has lawsuits challenging the laws in New Jersey, Maryland and in New York City.