Supreme Smack Down

6-3 High Court Ruling On Right-To-Carry A Huge Win

You could tell this was the chance Associate Justice Clarence Thomas has been waiting for, an opportunity to weigh in with a precedent-setting opinion on a Second Amendment issue which immediately sent the gun prohibition lobby into orbit.

The case is New York State Rifle & Pistol Association v. Bruen. The 6-3 ruling declares New York’s “good cause” requirement to obtain a concealed carry permit to be unconstitutional. Anti-gunners in and out of government are groaning and already scheming about ways to dance around this ruling, which was years in the making.

From his opening remarks explaining, “We recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home,” to his closing comment, “The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. 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,” you knew Thomas had this one in the bag.

The back story is rather simple, but important to those wanting to understand the nature of strategic litigation. The 2008 high court ruling in District of Columbia v. Dick Heller in which the court said the Second Amendment protects an individual right to keep and bear arms notwithstanding militia service opened the door to the 2010 ruling in McDonald v. City of Chicago which nullified that city’s handgun ban.

It was the McDonald victory in a case filed by the Second Amendment Foundation and Illinois State Rifle Association that made the New York case possible because it didn’t just end Chicago’s ban, it also — and more importantly — incorporated the Second Amendment to the states via the 14th Amendment.

Thomas Logic

Associate Justice Thomas loaded his opinion with pro-Second Amendment dynamite. He notes on Page 5 the ruling will have a direct impact on similar laws in California, Hawaii, Maryland, Massachusetts, and New Jersey, plus the District of Columbia, because they “have analogues to the ‘proper cause’ standard.”

On Page 8 of the ruling, Thomas explains, “In Heller and McDonald, we held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. In doing so, we held unconstitutional two laws that prohibited the possession and use of handguns in the home. In the years since, the Courts of Appeals have coalesced around a ‘two-step’ framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. Today, we decline to adopt that two-part approach.”

Two pages later, Thomas writes, “Despite the popularity of this two-step approach, it is one step too many.”

Then, on Page 19, the decision notes, “Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

And on Page 23, Justice Thomas puts it simply, “This definition of ‘bear’ naturally encompasses public carry.” That is, the right to bear arms extends beyond the door of one’s home. As he adds one page later, quoting the Heller ruling, “Moreover, confining the right to ‘bear’ arms to the home would make little sense given that self-defense is ‘the central component of the [Second Amendment] right itself.’”

Arguments over the past 12 years since McDonald that tried to box in the right to bear arms within the confines of one’s home simply do not pass the smell test.

On Pages 29 and 30, the ruling states, “Throughout modern Anglo-American history, the right to keep and bear arms in public has traditionally been subject to well-defined restrictions governing the intent for which one could carry arms, the manner of carry, or the exceptional circumstances under which one could not carry arms. But apart from a handful of late 19th-century jurisdictions, the historical record compiled by respondents does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense. Nor is there any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense. We conclude that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper cause requirement. Under Heller’s text-and-history standard, the proper cause requirement is therefore unconstitutional.”

There is much more worth noting in Justice Thomas’ 63-page majority opinion, along with things found in concurring opinions from Justices Brett Kavanaugh (joined by Chief Justice John Roberts), Samuel Alito and Amy Coney Barrett. We’ll save that for another time.

There is one more entry, on Page 51 of the Thomas ruling, that probably sends shudders through legislative halls in several states.

“The historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation. Under the common law, individuals could not carry deadly weapons in a manner likely to terrorize others. Similarly, although surety statutes did not directly restrict public carry, they did provide financial incentives for responsible arms carrying. Finally, States could lawfully eliminate one kind of public carry — concealed carry — so long as they left open the option to carry openly.”

For gun rights activists, this may be where the fun begins.

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