By: Brad Polumbo
In a landmark 2010 decision, the Supreme Court ruled that in addition to the federal government, states must also respect the public's individual constitutional right to bear arms. Yet the high court has neglected to take any more major Second Amendment cases in the decade since that would have further clarified the scope of this ruling, leading conservative Justice Clarence Thomas to dub the Second Amendment a “disfavored right.” As a result, many states have found ways to work around Supreme Court precedent and drastically restrict the ability of law-abiding people to carry firearms to protect themselves.
Yet, this could all soon change.
That is, if the Supreme Court makes the most of a case currently on its docket. The justices heard oral arguments on Wednesday in New York State Rifle & Pistol Association Inc. v. Bruen, a case that affords the court the opportunity to strike down state laws that are designed to, in practice, all but erase citizens’ constitutional right to bear arms outside the home. At question is New York’s process for granting concealed carry permits, which allow citizens to carry a firearm in public.
“The New York law at the center of the case … requires anyone who wants a license to carry a concealed handgun outside of the home to show ‘proper cause’ for the license,” SCOTUSBlog reports. “Courts in New York have defined ‘proper cause’ to require applicants to show a special need to defend themselves. For instance, a person who has been the target of recurrent physical threats likely would qualify. But a general desire to protect oneself or one’s property is not enough to obtain an unrestricted license to carry a concealed handgun.” (Emphasis mine.)
Similar laws are on the books in many other states such as California, Maryland, Massachusetts, New Jersey, and Hawaii, per SCOTUSBlog. Essentially, they allow government officials to decide who “really needs” to be able to exercise their Second Amendment rights and who doesn’t. Even living in a high-crime area doesn’t suffice in New York. Many, including the plaintiffs suing New York in the case, who pass a background check and simply wish to exercise their rights are not fully allowed to do so merely because some government bureaucrat says so.
To state the obvious, that’s not how constitutional rights are supposed to work. We would never accept a regime that required arbitrary government permission to exercise free speech, for example.
These state laws deprive millions of their lawful ability to defend themselves. (Firearms are used in self-defense somewhere between 500,000 to 2 million times per year .) So, too, these laws disfavor those without the connections and power to lobby successfully for permit approval. In an interesting twist, a coalition of black attorneys filed a brief in this case arguing that the New York law leads to minorities being unfairly punished for peacefully exercising their Second Amendment rights.
“The incorporated Second Amendment affords the people ‘the right to keep and bear arms,’” they write. “New York's licensing regime does the opposite. It deprives everyone of that right, only returning it to those select few who manage to first secure a firearm license from the police. As a result, each year, we represent hundreds of indigent people whom New York criminally charges for exercising their right to keep and bear arms.”
“For our clients, New York’s licensing regime renders the Second Amendment a legal fiction,” the attorneys conclude. “Worse, virtually all our clients whom New York prosecutes for exercising their Second Amendment right are Black or Hispanic. And that is no accident.”
Based on Wednesday’s arguments, it seems that at least some of the Supreme Court’s conservative justices understand the fundamental injustice at play here.
“Why isn’t it good enough to say, ‘I live in a violent area, and I want to defend myself’?” Justice Brett Kavanaugh asked. He said requiring subjective permission from a government official “seems inconsistent with an objective constitutional right.”
Kavanaugh is on to something. This case offers the Supreme Court, with its new conservative majority, the opportunity to do the right thing after years of inaction. The justices should issue a landmark ruling that stops states from enacting these kinds of constitutional-workaround policies and forces them to respect our Second Amendment rights. Until they do, the constitutional rights of millions will remain largely a “legal fiction.”