By: Peter Suciu
Next month, the Supreme Court of the United States (SCOTUS) will hear oral arguments on the first major Second Amendment case in more than a decade, and the ruling could be as fundamental as the 2008 and 2010 cases that essentially reaffirmed the right of Americans to possess firearms in their homes.
At the center of this case is New York State’s requirements for residents to prove “proper cause” to receive a permit to carry a gun in public. It has already been described as one of the most significant Second Amendment cases in U.S. history to date. The court’s ruling on New York State Rifle & Pistol Association v. Bruen, which is expected by mid-2022, could declare a New York State restriction on carrying a gun in public places unconstitutional.
The question presented to SCOTUS is:
Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self- defense.
The decision by the justices to hear the case comes after the court declined to take on a challenge to a Wisconsin state law that bans residents who have been convicted of felonies, including non-violent crimes, from owning handguns for the rest of their lives. Gun rights groups had sought to have federal courts apply a stricter standard when deciding laws that could prohibit gun ownership. This was actually the fourth such similar challenge that the court declined to take up, and instead allowed lower court rulings to be upheld.
Bear Arms
The New York case is notable could decide whether the Second Amendment right to “bear arms” is an actual right, “Or conversely, if law-abiding adults who pass a biometric background check and safety training can be denied a concealed carry permit simply because permitting officials only issue concealed carry permits when they feel that the applicant has a special need,” David Kopel, research director at the Independence Institute, wrote for Reason.com.
Such a ruling in favor of the plaintiffs, which include a National Rifle Association (NRA) affiliate, could in turn loosen gun regulations across the country.
As The Talking Points Memo reported last week, “This case is also noteworthy in that how the court reaches its conclusion could affect the Second Amendment analysis of all weapons laws in the future.”
Understanding the New York Law
New York’s laws that restrict the carrying of firearms date back more than a century to 1911 when after an increase in homicides, the state instituted a handgun permitting system. There is some irony in that the law was named for its primary legislative sponsor, state Sen. Timothy Sullivan, a notoriously corrupt Tammany Hall Democratic politician.
The Sullivan Act, however, basically required licenses for New Yorkers to possess firearms small enough to be concealed. Private possession of such firearms without a license was a misdemeanor, and carrying them in public was a felony. It was amended two years later to address concealed carry handguns. To obtain such a permit, an applicant must show they have “proper cause.”
For handguns, the Sullivan Act qualifies as a may issue act, meaning that the local police have discretion to issue a concealed carry license, as opposed to a shall issue act, in which state authorities must give a concealed handgun license to any person who satisfies specific criteria, often a background check and a safety class.
It has also been suggested by some historians that Sullivan actually sponsored the act so that he could have friends in the police force plant handguns on his rivals, which would lead to their arrest!
Challenging the Law
The plaintiffs in the case, Robert Nash and Brandon Koch, were denied unrestricted concealed carry after a judge determined that they did not satisfy New York’s proper-cause standard. However, Koch was issued a license to carry a concealed handgun for self-defense while traveling to and from work.
The two men contend that such limitations to carry a concealed handgun violate their right to right and bear arms.
This is not the first time the law has been challenged.
In the case Kachalsky v. Cacace (2012), a unanimous panel of the United States Court of Appeals for the Second Circuit upheld the constitutionality of the Sullivan Act, and rejected challengers’ positions that New York state handgun law violates the Second and Fourteenth Amendments to the Constitution.
It was in April that SCOTUS granted certiorari in New York State Rifle & Pistol Association, Inc. v. Bruen, which seeks to examine whether the Sullivan Act and the may-issue policies, in general, violate the Second Amendment to the United States Constitution
The court is set to hear oral arguments on Nov. 3.
Previously SCOTUS has overruled handgun bans in Washington, D.C., and Chicago – in 2008 and 2010 respectively. Those blockbuster cases had affirmed the rights of American citizens to possess guns in their homes, which could be considered the “keep” portion of the Second Amendment’s wording, “right to keep and bear arms.” Those cases still left unanswered questions about carrying firearms in public, though.
Additionally, in the 2008 case, the majority had asserted that its ruling was not intended to cast doubt on state bans that specifically prohibited convicted felons from owning firearms – which is why the SCOTUS has declined to take up challenges such as the recent one in Wisconsin, whilst still agreeing to hear the New York State Rifle & Pistol Association case on the right to “bear” arms.
Peter Suciu is a Michigan-based writer who has contributed to more than four dozen magazines, newspapers and websites. He regularly writes about military small arms, and is the author of several books on military headgear including A Gallery of Military Headdress, which is available on Amazon.com.