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“The Supreme Court on Thursday struck down a New York handgun-licensing law that required New Yorkers who want to carry a handgun in public to show a special need to defend themselves… The state law at the heart of New York State Rifle & Pistol Association v. Bruen required anyone who wants to carry a concealed handgun outside the home to show ‘proper cause’ for the license. New York courts interpreted that phrase to require applicants to show more than a general desire to protect themselves or their property. Instead, applicants must demonstrate a special need for self-defense – for example, a pattern of physical threats. Several other states, including California, Hawaii, Maryland, Massachusetts, and New Jersey, impose similar restrictions, as do many cities.” SCOTUSblog
Here’s our prior coverage of the case. The Flip Side
The right supports the decision, arguing that constitutional rights should not be dependent on bureaucratic discretion.
“New York was one of only a handful of states to follow a ‘may issue’ regime in granting concealed carry permits, giving the state all but absolute discretion in deciding who gets to carry a gun lawfully and who doesn’t. In 42 states, the regime is either ‘shall issue,’ in which the state must grant a permit provided that an applicant meets certain basic qualifications, or ‘constitutional carry,’ in which residents can carry without a permit…
“Once you arrive at the basic conclusion that a right to ‘keep and bear arms’ includes a right to bear arms then a ‘may issue’ regime is constitutionally impossible. By definition, a right that can be ignored by the state in its absolute discretion isn’t a right at all. It’s a privilege…
“The Court didn’t say that the state can’t restrict concealed carry at all; of course it can, limiting the practice to people without a criminal record, for instance. ‘Shall issue’ regimes are still legal under the Second Amendment. What a state can’t do is decide arbitrarily who gets a permit and who doesn’t. If you have a right to carry a gun, necessarily that right can’t depend on the whims of the government.”
Allahpundit, Hot Air
“‘We know of no other constitutional rights that an individual may exercise only after demonstrating to government officers some special need,’ Justice Clarence Thomas noted in the majority opinion. ‘That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.’”
David Harsanyi, The Federalist
“Instead of panicking about a shocking violence surge that is unlikely to arrive, [New Yorkers] can focus on drafting new rules that simultaneously respect two sets of boundaries: the Supreme Court’s interpretation of the Second Amendment, and the policy preferences of New York residents…
“New York can minimize the number of people who get permits; ensure that these individuals are as law-abiding, mature, and well-trained as possible; and, at least for the time being, keep (legal) guns out of much of the city’s daily life entirely. A subway gun ban, for example, would not only apply to the subway, but also discourage gun carriage among everyone who regularly uses the subway. Many private businesses can be counted on to ban guns on their property, too, making it even harder for a concealed-carrier to go about his day armed.”Robert VerBruggen, New York Post
“[The ruling] does not mean urban America will soon resemble the Wild West. Forty-three states, Justice Thomas says, already have ‘shall issue’ regimes, meaning carry permits are available to everyone who meets objective criteria. That process can be rigorous and might include fingerprinting, firearms training, background checks, and so forth. A concurring opinion by Justice Brett Kavanaugh, joined by Chief Justice John Roberts, stresses that the Court is not calling such rules into question. What’s unconstitutional is that six states—New York, New Jersey, Maryland, Massachusetts, California and Hawaii—offer residents no clear path to carry a gun to defend themselves.”
Editorial Board, Wall Street Journal
The left criticizes the decision, arguing that less restrictive laws will increase crime and that the opinion’s historical analysis is flawed.
The left criticizes the decision, arguing that less restrictive laws will increase crime and that the opinion’s historical analysis is flawed.
“Last September, former police commissioners throughout the U.S. — including former LAPD chief Charlie Beck and NYPD chief Bill Bratton — signed an amicus brief arguing that ‘the increased presence of concealed handguns which follows from less restrictive permitting regimes leads to higher rates of both police and citizen fatalities.’ The former chiefs cited a 2017 study finding that firearm-homicide rates in states with more lax permit laws were 8.6 percent higher than in ‘proper cause’ states such as New York…
“A 2018 study showed that states with lax concealed-carry applications experience a 13–15 percent higher rate in aggregate violent crime, and a 2019 study showed that states that allow law enforcement to issue concealed-carry permits experienced 11.1 percent lower homicide rates.”
Matt Stieb and James D. Walsh, New York Magazine
“The Court says that only gun laws which have historical precedent are constitutionally permissible, and then the Court dismisses all of the historical precedents for heavy restrictions on concealed-carry laws as outliers…
“The Court says that it is going to look to history, but dismisses early English common law as too old. The Court says that it is going to look to history, but dismisses any laws that were adopted after the mid-eighteen-hundreds as too young. The Court says that it is looking to history, but also says that shall-issue permitting is constitutional, even though shall-issue permitting is a twentieth-century invention. So the Court says that it is doing history and tradition analysis, but conveniently ignores any history it doesn’t like…
“This decision [also] calls into question several key provisions of the Senate gun bill. For instance, the Senate bill provides funding for states to roll out red-flag laws. Red-flag laws are not grounded in history and tradition. In the seventeen- and eighteen-hundreds, there were no laws similar to red-flag laws that allow the temporary confiscation of firearms when someone is in crisis. The Senate gun bill closes the boyfriend loophole on domestic abusers. In the seventeen- and eighteen-hundreds, there were no laws that prevented domestic abusers from possessing firearms.”
Adam Winkler, New Yorker
“Justice Clarence Thomas’s majority opinion made clear that the constitutionality of restrictions is historically ‘settled’ in ‘sensitive places’ such as legislatures, courtrooms and polling locations, and that ‘modern regulations’ may ‘prohibit’ the carry of firearms in ‘new’ places…
“Given that, states should enact an expansive list of so-called sensitive places where guns may not be carried. Though Justice Thomas did not specify which those might be, during oral arguments in November, several justices pondered that they might include public transportation, crowded venues, university campuses and places where alcohol is served…
“Another promising reform for states to consider would be to require gun owners to possess firearm liability insurance. Not only would such a requirement ensure that victims of gun violence can recover for their losses and ‘provide financial incentives for responsible arms carrying,’ but it also draws strong historical support from a host of 19th century ‘surety laws’ recognized in the court’s opinion.”
Aaron Tang, New York Times
A libertarian's take
“The Second Amendment is far from the only constitutional right that poses threats to human life, and may not even pose the greatest such threat. If potential threats to life justify near-total judicial deference, we would soon have few constitutional rights left… For example, anti-vaxxer speech might lead people to forego vaccinations that would save their lives. Bogus claims that the 2020 election was ‘stolen’ from Donald Trump pretty obviously inspired the violence of January 6, 2021. Left-wing rhetorical excesses in response to the death of George Floyd might have helped inspire the riots of the summer of 2020. And this list could easily be extended…
“One can argue that guns inherently threaten life, while only a small percentage of exercises of free speech rights or criminal procedure rights do the same. But it is equally true that only a small percentage of gun owners ever use them to commit crimes. In all these situations, the case for regulation rests on the theory that we must restrict a wide range of people in order to forestall the relatively small minority who cause great harm.”
Ilya Somin, Volokh Conspiracy
