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by Stephen P. Halbrook -
Wednesday, July 28, 2021
Under New York law, illegal possession of a loaded handgun is a crime punishable by imprisonment for “at least three years,” but the sentence “shall not exceed fifteen years.” With a premises license, one can keep a handgun in his or her dwelling. To get a carry license, the authorities must decide that the applicant has a “proper cause.”
You might think that “proper cause” would include the exercise of the Second Amendment right to bear arms for self-defense. But you’d be wrong. In Orwellian New (York) speak, “proper cause” means whatever government officials want it to mean. As explained in Kachalsky v. County of Westchester (2nd Cir. 2012), one must “demonstrate a special need for self-protection distinguishable from that of the general community.” A desire “to protect one’s person and property” and “living or being employed in a high-crime area” do not suffice.
As that court remarked, licensing officers are “vested with considerable discretion” in deciding whether “proper cause” exists. “Considerable discretion,” that is, in whether you may exercise a constitutional right. If you’re in the Big Apple or in some other areas of the state, you don’t qualify unless you’re a big shot, a celebrity or an influence peddler.
Or maybe you haven’t paid the right bribe. “A former city cop spilled his guts ... telling Manhattan jurors about years worth of bribes he and his fellow officers received for doling out gun permits—everything from cash, prostitutes and expensive watches to baseball memorabilia and exotic vacations,” reported the New York Post in April of 2018.
New York is one of eight “may-issue” states that do not recognize the right to bear arms as a right at all. Forty-two states recognize the right by shall-issue or constitutional-carry laws. In 2020, the U.S. Supreme Court had a chance to right the wrong as applied to New Jersey in Rogers v. Grewal, but declined to hear the case. Justice Clarence Thomas, joined by Justice Brett Kavanaugh, dissented, noting the need “to provide lower courts with much-needed guidance, ensure adherence to our precedents and resolve a Circuit split.”
Instead of deciding whether a law violates the right to bear arms based on the constitutional text, history and tradition, some circuits have revolted against the D.C. v. Heller (2008) decision and, as Thomas and Kavanaugh argued, “then ‘filled’ the self-created ‘analytical vacuum’ with a ‘two-step inquiry’ that incorporates tiers of scrutiny on a sliding scale.” That “test appears to be entirely made up,” as “the Second Amendment provides no hierarchy of ‘core’ and peripheral rights.”
The Second Amendment could not be clearer: “the right of the people to ... bear arms shall not be infringed.” New York’s version drops the “not” and states that the right to bear arms of most people “may be infringed,” and that the state may dole out that privilege to a favored elite.
The appointment of Amy Coney Barrett as a new justice likely changed the balance on the Court to one more sympathetic to the Second Amendment. Meanwhile, a new case was knocking at the Court’s door: New York State Rifle & Pistol Association v. Corlett. The Second Circuit had upheld New York’s carry license law based on its prior Kachalsky decision. The petition to the U.S. Supreme Court stated the issue to be: “Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.”
On April 26, 2021, the Court granted the petition but rephrased the issue as: “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”
Second Amendment supporters rejoiced while the haters wailed impending doom.
More often than not, the Court relies on the issue as stated by the petitioners. In this case, the Court reformulated the issue to concern concealed-carry licenses and did not mention the alternative of open carry. But the Court’s version was consistent with how New York carry licenses work. It’s a crime to carry openly, and no license exists to do so. The only license to carry that is available authorizes concealed-carry only. So not too much should be read into the Court’s version of the issue.
According to the schedule, the parties and their amici will file briefs this summer, and the case will be heard during the October 2021 term. Oral argument will likely be this fall, while a decision may not be forthcoming until June of 2022—the usual timing of the most-controversial decisions.
Is there a danger that New York will somehow tweak its law to manipulate the Court’s jurisdiction by rendering the case moot? The city did exactly that in 2019 in NYSRPA v. City of New York. City law prohibited persons with a premises permit from taking a handgun outside their dwelling other than to one of the five ranges in the city. When the Court granted review of the case, the city frantically tried to weasel out. The gun-prohibition movement nationwide desperately wished to prevent the Court from saying a word about the Second Amendment. Sen. Sheldon Whitehouse (D-R.I.) and four other senators even filed a “friend-of-the-court” brief threatening to get revenge against the Court if it ruled in favor of the petitioners.
So the city amended its ordinance to allow a premises-license holder to take a handgun directly to a shooting range outside the city and directly back, and to take it to a second home (but only if another premises license is obtained there). And the Court ruled the case to be moot in 2020, over a strong dissent by Justices Samuel Alito, Neil Gorsuch and Clarence Thomas.
While life in the Court’s fast lane can be unpredictable, it’s difficult to anticipate how New York might escape a decision in this case. The plaintiffs are individuals whose applications for carry licenses were denied as lacking “proper cause,” and numerous members of NYSRPA are in the same shoes. No way is the state going to amend its law to “shall- issue.” It could grant carry licenses to the individual plaintiffs, but there is no assurance that it won’t revoke those licenses if the case is dismissed. Not to mention the interests of the association members. Often in constitutional-law cases, the Court will retain a case involving a dispute that might superficially seem settled, but is capable of repetition and yet evades review.
Coincidentally, just days before the Court granted the petition in April, my new book appeared, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? It deals with the very issue before the Court. For years, anti-gun zealots and courts have been painting a faux history to the effect that a tradition of regulation allows the right to bear arms to be turned upside down into the crime of bearing arms. My book refutes that.
This quirky view of constitutional law maintains that the Statute of Northampton of 1328, passed in the reign of King Edward III, outlawed going armed, and this longstanding tradition somehow overrides the Second Amendment. No matter that in Sir John Knight’s case in 1686, the English court interpreted that statute to mean that it was a crime only to go armed in a manner to terrorize the subjects. Knight was acquitted because he carried firearms peaceably for self-defense after being attacked. Similar rules were adopted in early America.
Expect to see the same chicanery argued in the New York case. Perhaps the most-blatant misuse of history this year was in the decision in Young v. Hawaii, in which the Ninth Circuit en banc upheld Hawaii’s ban on both open and concealed carry. Another Edward III law, passed in 1350, made it a crime for one to “ride armed [covertly] or secretly with Men of Arms against any other, to slay him, or rob him, or take him, or retain him till he hath made Fine or Ransom ... .” The Ninth Circuit claimed that this law “banned the carrying of concealed arms.” It quoted the part about riding armed secretly but deleted the part beginning with “to slay him”!
Some medieval English decrees banned the carrying of arms “without the license of the King,” which were often based on wealth qualifications. Those who cited these decrees as precedents for “may-issue” today don’t seem to realize that the American Revolution occurred. Imagine Patrick Henry being told he needed a “royal license” to carry arms. He exclaimed “give me liberty or give me death” against that very system of arbitrary power.
When the Constitution was proposed without a bill of rights in 1787, the Antifederalists demanded a declaration of liberties, including the right to bear arms. The Federalists argued that however worded, artful deceivers would misconstrue it to negate those very rights. The 20th century argument that only militiamen on duty have a “right” to bear arms proved that the Federalists were right. But the Antifederalists were right too, in that the American people know that “the right of the people to keep and bear arms, shall not be infringed.” The U.S. Supreme Court recognized the same in D.C. v. Heller.
That caused the anti-gun movement to retreat from its pretended claim that the Second Amendment only protects the “right” of states to maintain militias. Now they wrap themselves in “history,” claiming that the long tradition of restrictions obliterates the clear words of the Amendment.
They pretend to have found the clincher in the Massachusetts law of 1836, which they claim banned the carrying of pistols; in fact, the law provided that if a person “go armed” with a pistol or other weapon “without reasonable cause to fear” violence, “he may, on complaint of any person having reasonable cause to fear an injury, or breach of the peace, be required to find sureties for keeping the peace.” It clearly required a complaint with “reasonable cause” to fear violence. Without that, one could go armed. And even with a valid complaint, reasonable cause to fear violence justified carrying the weapon. In the worst case, the person could essentially pay a sum as a guarantee to keep the peace and keep going armed.
Believe it or not, these are the kinds of arguments the U.S. Supreme Court will hear in the New York case. New York will point to its own longstanding restrictions first enacted in the Sullivan Law of 1911, which was spearheaded by the corrupt boss “Big Tim” Sullivan and aimed to repress Italian-Americans who carried arms to protect themselves from the criminal violence against which the police did not protect them. The judge who sentenced the very first person under that law said as much when he sent the defendant to Sing Sing for a year.
With his classic wit, H. L. Mencken wrote in 1925 that the Sullivan Law required that “the Second Amendment had to be severely strained, but ... the courts, as usual, were willing to sign on the dotted line.” Some courts have continued to do so today, which is why the U.S. Supreme Court needs to rein them in.
Other than a perverted rendition of history, another major tool in the anti-gun arsenal is to claim that, even if the right to bear arms is in the “scope” of the Second Amendment, exercise of the right is overridden by compelling government interests. In this judicial fiction, banning the bearing of arms is a reasonable means of protecting the public, and, presto, such a ban does not violate the Second Amendment.
You can’t make this stuff up.
The U.S. Supreme Court stated in Heller that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” It rejected Justice Stephen Breyer’s “interest-balancing” test in which judges could balance away rights in order to uphold gun bans. And yet some lower courts are doing exactly what Heller prohibited. They are engaged in massive resistance to the Supreme Court’s authority in an effort to undermine the Second Amendment.
The Second Amendment could not be clearer: “the right of the people to ... bear arms shall not be infringed.” New York’s version drops the “not” and states that the right to bear arms of most people “may be infringed,” and that the state may dole out that privilege to a favored elite. We’ll see if the U.S. Supreme Court accepts that travesty of the U.S. Bill of Rights.
Stephen P. Halbrook is a senior fellow with the Independent Institute and the author of 10 books, including The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class?
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