NRA Explore by Jason Ouimet 10/4/2021
Amicus Briefs Highlight Strength of NRA-Backed Second Amendment Supreme Court Case
After what was to many gun-rights supporters a prolonged hiatus, a case squarely involving the scope of the Second Amendment is back before the U.S. Supreme Court. On April 26, the Court granted cert in New York State Rifle & Pistol Association v. Bruen. Brought by NRA’s New York state affiliate, with NRA’s backing, the case provides the Court with the opportunity to affirm that the Second Amendment protects the right to bear arms for self-defense outside the home. Given some of the lower federal courts’ intransigence in the wake of D.C. v. Heller and McDonald v. Chicago, in which the Court recognized that the Second Amendment protects an individual right to keep and bear arms, the stakes in NYSRPA v. Bruen couldn’t be higher.
At issue is the validity of New York’s prohibition on carrying firearms outside the home coupled with the state’s restrictive carry licensing scheme. At present, 42 states recognize the right-to-carry concealed outside the home for self-defense. States often do this by operating a shall-issue licensing regime, whereby law-abiding members of the public are granted a license to carry a firearm outside the home if they meet certain discrete criteria. An increasing number of states (21), provide for law-abiding adults to carry concealed firearms outside the home without obtaining government permission—something that we continue to pursue nationwide.
New York operates a may-issue licensing scheme. In addition to requiring the applicant be law-abiding, the prospective license holder must also demonstrate to a licensing officer that “proper cause exists for the issuance” of the license. While Second Amendment supporters would consider “proper cause” to include self-defense, in practice, this “proper cause” standard affords the government immense discretion over who receives a carry license.
As the plaintiffs have pointed out, the New York penal code does not further define “proper cause.” Moreover, the lower federal courts have sanctioned broad discretion by licensing officers and have offered rulings that encourage a narrow reading of “proper cause.” In one 2012 case, a court contended “A generalized desire to carry a concealed weapon to protect one’s person and property does not constitute ‘proper cause.’”
Sadly, the oft-lethargic lower federal courts have allowed New York’s licensing regime to persist even after the Court recognized that the Second Amendment protects an individual right to keep and bear arms in Heller and McDonald.
In order to justify all manner of outmoded gun controls, some of the lower federal courts have taken to applying a two-step tiered scrutiny approach to assessing whether a gun- control measure passes constitutional muster. Under such an approach, a court first determines whether or not the policy impacts the Second Amendment right and, if so, to what severity. Depending on the determined severity, the court then applies one of three levels of judicial scrutiny to weigh the measure’s impact on the right against the government’s public policy interest to determine if the law is valid. Given the subjective nature of each test component, a reasonable person could be forgiven for thinking this standard was designed for judges to indulge their political leanings.
More:
https://www.americas1stfreedom.org/articles/2021/10/4/amicus-briefs-highlight-strength-of-nra-backed-second-amendment-supreme-court-case
