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High court takes up Second Amendment

The Second Amendment to the U.S. Constitution provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The Second Amendment is again before the U.S. Supreme Court.

The challenge is to New York law.

Two watershed Second Amendment opinions issued in 2008 and 2010.

In District of Columbia v. Heller in 2008, the court established that the Second Amendment right to keep and bear arms is an individual’s right to keep and bear arms. The individual need not belong to a militia.

Then, in 2010, the court held in McDonald v. City of Chicago that the Second Amendment restricts not only the federal government but also state governments.

So what does the Second Amendment mean?

Well, under the Second Amendment – just to illustrate extremes – individuals have a constitutional right to keep and bear way more than squirt guns and way less than intercontinental-ballistic missiles with multiple nuclear warheads.

So where and how does one draw the line?

Enter New York law, on which the court will hear oral arguments in New York State Rifle and Pistol Association v. Bruen on Nov. 3.

This will be a good decision for Justice Clarence Thomas – for more on the court’s longest-serving current member, please see last week’s column – to favor us with one of his always cogent, always easy-to-read historical analyses.

According to the New York State Rifle and Pistol Association’s brief:

¯ New York makes it a felony to possess any firearm – as the law defines the term (“‘any pistol or revolver,’ shotguns and rifles with barrels under specified lengths, and any ‘assault weapon'”) – either inside the home or outside the home, without a license. If the firearm is loaded, it’s a higher felony. The exceptions are narrow and are primarily for police and the military.

¯ To issue a license, a licensing officer – usually a judge or a law-enforcement officer – must find that the applicant has good moral character, lacks a history of crime, lacks a history of mental illness, and that “no good cause exists for the denial of the license,” and

¯ To receive a license to carry outside the home, the applicant must show “proper cause,” meaning the applicant must “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”

The association asserts “New York law makes it effectively impossible for an ordinary, law-abiding citizen to obtain a license to carry a handgun for self-defense.” Thus, the association challenges, under the Second Amendment, “New York’s ban on carrying handguns and its stringent ‘proper cause’ requirement”: “New York’s effort to deprive” those challenging New York law “and other law-abiding New Yorkers of that right, unless they can satisfy a government official that they have an especially great need to exercise that right, is unconstitutional. Simply put, the state cannot reserve for a happy few a right that the Constitution protects for all ‘the people.’ Moreover, the substantial discretion afforded government officials exacerbates the constitutional difficulties and reflects the law’s origins as a mechanism to selectively disarm the people.”

New York, in a brief filed by the state’s solicitor general, counters that the Second Amendment doesn’t entitle “individuals to carry handguns as a matter of course in all or nearly all public spaces, on the theory that self-defense is potentially needed everywhere.” Furthermore, “local officials have long had wide latitude to decide where and under what circumstances firearms could be carried in public, and to restrict the carrying of concealable firearms, particularly in populous areas.”

In addition, New York asserts “no jurisdiction would have allowed what” the association seeks: “the right to carry a handgun everywhere (or virtually everywhere) – including the crowded and populous areas of cities and towns – based on speculation that a confrontation warranting the use of deadly force might suddenly arise.”

All Supreme Court opinions matter. This one may matter a lot.

Dr. Randy Elf’s most recent U.S. Supreme Court brief is at https://works.bepress.com/elf/30.

ç 2021 BY RANDY ELF

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