3 things to know about Second Amendment’s big return to Supreme Court

By Amy Swearer | The Daily Signal

It’s been well over a decade since the Supreme Court last decided a meaningful Second Amendment case. That wait is about to end.

Although District of Columbia v. Heller (2008) and McDonald v. City of Chicago(2010) answered some foundational questions about the right to keep and bear arms, the Supreme Court’s decade of silence enabled lower courts to undermine these core cases routinely. This in turn allowed states to run roughshod over the Second Amendment.

Public domain

The Supreme Court has the opportunity to address a very important question it so far has declined to answer: When the Second Amendment protects the right to bear arms, does it mean a right to bear a handgun in public for purposes of self-defense?

We’ve gotten our hopes up before that the Supreme Court finally would stop treating the Second Amendment as a second-class right, unworthy of consistent legal review. Just last term, the high court excited millions by taking up New York State Rifle & Pistol v. City of New York, which was about New York City’s incredibly restrictive laws on transporting firearms.

That excitement came to a crushing end when New York City enacted minor changes to its laws and the Supreme Court declared the case moot, declining in the interim to take up any of the remaining Second Amendment challenges for the term. Many suspected we might go another decade without seeing the court hear another challenge to gun control laws.

But last week, the Supreme Court agreed to hear New York State Rifle & Pistol v. Corlett, a case that could have much broader implications for the future of strict gun control than its mooted predecessor.

Here are three important things to know about the high court’s latest Second Amendment case.

1. This case is about the right to carry firearms in public.

New York State Rifle & Pistol Association v. Corlett provides the Supreme Court with the opportunity to address a very important question it so far has declined to answer: When the Second Amendment protects the right to bear arms, does it mean a right to bear a handgun in public for purposes of self-defense?

According to New York and a handful of other gun control-friendly states, the answer has been a resounding no. In these states, the right to “bear” arms has been effectively restricted to a right to possess and handle a gun in your home, and nothing more.

If you want to protect yourself with a firearm in public, the state considers it a privilege you can exercise only after showing “good cause” above and beyond a desire to protect yourself from crime in general.

In essence, law-abiding citizens in these states have no right to “bear” arms outside their homes.

The petitioners in the new case include two New York residents who have extensive experience and training with firearms. Both applied for and were denied carry permits for their firearms because they did not “face any special or unique danger to [their] life.”

It appears the Supreme Court finally has five justices willing to vindicate the rights of these petitioners. We know that Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh have publicly decried the court’s reluctance to take up cases involving similar “good cause” laws and affirmed that there is, indeed, a right to bear arms.

Meanwhile, Justices Samuel Alito and Amy Coney Barrett have evidenced a faithful adherence to the text, history, and tradition of the Second Amendment in different types of gun control cases. They would seem unlikely candidates to side with New York’s interpretation that the right to bear arms is only a privilege for the select few determined to meet arbitrary “good cause” requirements.

2.  ‘Good cause’ and ‘may issue’ requirements have racist roots.

For the first 70 or so years after the Constitution was ratified, Americans undeniably maintained a general right to bear arms in public, with perhaps some state authority to regulate the mode of carry.

A minority of states eventually prohibited or heavily regulated the act of carrying a concealed firearm in public. But no state completely eradicated an ordinary citizen’s ability to carry some type of firearm in public in some manner without first having to seek permission from the government.

Well, all white Americans enjoyed a right to bear arms in public.

Laws heavily regulating the public carry of firearms were, like all early forms of restrictive gun control, reserved for the subjugation of slaves and other individuals who were, at the time, legally considered as falling outside of “the People” of the United States.

Even after slavery was abolished and the 14th Amendment forbade race-based gun restrictions, many southern states looked to racially neutral but highly discretionary gun control laws to effectively disarm black citizens.

A Florida Supreme Court case in 1941 provides some insight into just how blatantly and openly states used discretionary permit systems to deprive black Americans of their rights. The court overturned a white man’s conviction for carrying a handgun in public without a permit, in apparent violation of state law.

Justice Rivers Buford nonchalantly explained the racist origins and enforcement of the law in his concurring opinion:

The original Act of 1893 was passed when there was a great influx of negro laborers in this State. … The Act was passed for the purpose of disarming the negro laborers … and to give the white citizens in sparsely populated areas a better feeling of security. The statute was never intended to be applied to the white population and in practice has never been so applied.

The reality is that today’s “good cause” requirements may not be overtly racist, but in practice they serve to disproportionately exclude people of color from the ability to protect themselves in public with firearms. Constitutional implications aside, this makes discretionary licensing poor public policy.

Who ends up getting concealed carry permits in the most restrictive “good cause” jurisdictions? Overwhelmingly, the permits go to wealthy white men—especially those who are well connected to whatever public official happens to have sole discretion over granting permit applications.

It’s also little wonder that such incredibly discretionary schemes lend themselves to rampant corruption.

3. Public carry will not turn us into the ‘Wild West.’

Many gun control advocates insist that if the Supreme Court strikes down “good cause” requirements then the nation will be turned into a “Wild West” of gun violence.

In other words, the Second Amendment shouldn’t protect a right of ordinary citizens to bear arms in their own defense, because ordinary citizens largely are incapable of acting in a reasonable manner when armed in public.

Decades of plain data show just the opposite.

Between 1990 and 2000, 16 states changed their concealed carry laws from either “no issue” or “may issue” to “shall issue” permitting. During that time, national rates for violent crime, homicide by gun, and other gun crime plummeted.

Since 2000, the trend toward more permissible public carry laws not only continued (42 states and the District of Columbia are either “constitutional carry” or “permitless carry”), but public interest in obtaining permits skyrocketed. Over 19 million American adults now possess a concealed carry permit, up from roughly 3 million adults in 2000.

If gun control advocates were correct about their Wild West hypothesis, surely the last two decades would have been an increasingly violent mess.

But the data clearly do not bear that out. Violent crime rates continued a general downward trend while gun homicide and other gun crime rates remained consistently low after plateauing around 2011.

It turns out that ordinary, law-abiding citizens absolutely can be trusted to “bear” arms in public, just like the plain text of the Constitution envisions.

Hopefully, the Supreme Court soon will vindicate the tens of millions of American citizens currently deemed to have “insufficient cause” to exercise their constitutional rights.

Image courtesy of Public domain

7 thoughts on “3 things to know about Second Amendment’s big return to Supreme Court

  1. 29 April 2021 Headline in local paper:

    ‘Region’s Law Enforcement Stretched Even Thinner As State Police Vacancies Increase And Sheriff Contracts Shrink’

    During the summer months there will be a gap in contracted services for about 66 hours straight. During that time 911 callers would be turned over to VSP in St. Albans to ‘assess the need for a response and respond as needed and able.’

    It’s past time to take a closer look at who receives taxpayer provided personal protective security details, both in Vermont and nationally, and determine where they can be cut, so those politicians and judges can live the same way the rest of us do.

    • Any politician elected in Vermont who is a proponent of restricting gun rights for his or her constituents should not be afforded any personal protection details as they are given the right of Constitutional Carry the same as it’s citizens, Oh! but that’s right they are potential felons because they have violated their oath of office under penalty of perjury for passing egregious anti 2nd Amendment legislation and stripped of their 2nd Amendment rights.

  2. The 2nd Amendment is our permit. We need no other.

    “The people who object to weapons aren’t abolishing violence they’re begging for rule by brute force, when the biggest, strongest animals among men were always automatically “right” , guns ended that, and social democracy is a hollow farce without an armed populace to make it work”.
    L. Neil Smith

  3. If you are a law-abiding citizen, for Liberals that means no ” Criminal ” record, and that
    also, mean you have pass a NICS background check, so there no reason you should not
    be able to carry a firearm, while walking in the USA and traveling from state to state.

    Liberal cities, especially NYC, keeps fighting to control their citizens and ignoring what’s
    in the Constitution……. follow the money !!

    This should be one of the easiest cases for the SCOTUS if they follow the constitution and
    not an agenda….. this will show their real colors.

    • “This should be one of the easiest cases for the SCOTUS if they follow the constitution and
      not an agenda….. this will show their real colors.”

      Time will tel if the justices first duty is to that of the Constitution or a agenda,Constitution be damned.

  4. I can’t believe that no one has a comment here. It seems that many Vermonters are afraid to say anything these days. This is a well written article with a historical background. Surely, The Vermont legislature would approve of (new word) BIPOC firearms ownership, right? The democrats were the authors of Jim Crow laws in the south that forebode the carrying or owning of firearms for blacks. These were laws to prevent black farmers from defending their lives and property from invading KKK members. The democrats have tried everything to disarm all people and why is that? Like all authoritarians, it is easier to rule over people who can’t fight back. We must never surrender our rights that are not granted by government authoritarians, dictators or progressives. When you hear the words, common sense gun control remove the word gun and you have the truth. Guns can’t be controlled, only people can and these laws are for people not guns.

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