The Right to Carry a Gun Finally Gets its Day in Supreme Court on Wednesday
Biden triggered, announces gun control executive actions to appease his base
The new conservative majority on the Supreme Court is locked and loaded to shoot down the state laws that restrict the right to bear arms — carry a gun — to only citizens who can prove they need it.
Did you notice there are no pop up ads or sponsors mentioned here? That’s because paid subscribers fund this work. Click below if you value this journalism.
Oral arguments on Wednesday morning for a New York case will impact all states laws that severely limit conceal carry permits. As Justice Clarence Thomas says, it’s time to stop treating the Second Amendment as a “second-class right.”
When I wrote about SCOTUS taking up this case in April, readers disagreed with my optimism. We won’t know for sure until the opinion is issued next year, but I am sticking to my guns.
If you live in New York, New Jersey, Maryland, California, Massachusetts or other states that make it almost impossible to carry a gun for self defense out of the home, you’re about to get your rights restored.
I predict that tomorrow you will hear at least five justices asking questions in court that tip the public to their support for overturning the lower court ruling in New York State Rifle & Pistol Association v. Bruen.
We know how Thomas and Justices Samuel Alito will vote because of their opinions on the Heller ruling in 2008. That case overturned the complete ban on gun ownership in Washington, D.C. and said that the individual has the constitutional right to keep a gun at home. A year later, the Supreme Court said in McDonald that this right is for citizens of all states.
I don’t believe Thomas and Alito would have gone along with taking up the New York case if they didn’t believe they had the votes to finish the job started in Heller.
Two of the justices appointed by Pres. Trump -- Neil Gorsuch and Brett Kavanaugh -- have ruled or spoken about Second Amendment cases and are solid votes. Justice Amy Coney Barrett is less known on the issues since she’s only ruled in one gun case.
However, there is no way Alito and Thomas would risk a case this important on unreliable Chief Justice John Roberts. Roberts may vote with the majority, but he’s not going to be the deciding factor ever again.
Keep in mind, when Thomas, Alito, Gorsuch and Kavanaugh voted voted to take up this case in April, they wrote that:
The time has come for this Court to resolve this critical constitutional impasse and reaffirm the citizens’ fundamental right to carry a handgun for self-defense.
SCOTUS blog has this cool infographic on the Justices voting in the majority in the last term. To me, it shows the public has a misconception how frequently the Republicans break rank.
New York case detail
The basics of this case is that two private individuals, Robert Nash and Brandon Koch, and the New York State Rifle & Pistol Association are challenging New York state law that requires concealed carry permit applicants to demonstrate “proper cause.” They are being represented by lawyer Paul Clement.
Both Nash and Koch have a “restricted” license to take guns outside their homes to go hunting and target shooting but not for self defense. They both applied for New York conceal carry permit licenses and were denied because they couldn’t prove “a special need for self defense that distinguished him from the general public.”
The New York law is like DC was briefly. If you're been following my reporting over the years, I first got a carry permit in DC by showing special needs, which were stalkers. But then DC gave up the legal battle so the permits changed to “shall issue” and anyone can apply.
They sued Kevin Bruen in his official capacity as Superintendent of the New York State Police. The U.S. Court of Appeals for the Second Circuit said it already ruled on the matter in the 2012 case Kachalsky v. Cacace, which also challenged the state’s conceal carry permit scheme. Attorney Alan Gura for the Second Amendment Foundation appealed Kachalsky to the Supreme Court in 2013, but was denied.
The simple question before the court is: Whether New York’s denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.
Biden is triggered
The day before the major gun carry case, Pres. Biden announced strange new executive actions for gun control. (Link at bottom to read them yourself.) The White House spin is that the new restrictions are for preventing suicide by gun. But the new regulations are already in practice by the firearms industry.
“It’s lipstick on a pig,” Mark Oliva from the National Shooting Sports Foundation (NSSF) told me in a phone interview about the executive actions. The pig is Biden’s expectation that Wednesday will highlight the rights of gun owners and make his gun control activist base more miserable.
NSSF is the lobbying group for firearms and ammunition manufactures and gun dealers. I ticked off the new Biden actions to Oliva -- gun locks, safes and suicide prevention activities -- and he pointed out the web page describing their programs. Oliva said wryly that, “We welcome the news that the White House recognizes our solutions are effective.”
While I was talking to Oliva, I asked his opinion on what’s going to happen at SCOTUS. “There is reason to be optimistic,” he agreed. “This is no longer the Roberts Court. This is the Thomas Court.”
If you have my book, Emily Gets Her Gun, read page 254 when I asked Justice Antonin Scalia at a formal dinner in 2013 when the Supreme Court would take up a case on carry rights.
At the time, I thought he had to do it before Pres. Obama stacked the court. Instead, Pres. Trump stacked the court with Second Amendment supporters. It all works out in the end when people’s rights are being infringed.
Listen to the arguments in the Supreme Court tomorrow at 10 a.m. I’ve linked the live audio feed at the bottom.
If you want to tell me I’m still overly optimistic as the justices ask their questions, hit me in the comments below.
The Supreme Court:
NSSF Real Solutions — Project Child Safe, Operation Secure Store, Suicide Prevention, etc.