- The Washington Times - Monday, September 20, 2021

The Supreme Court will grapple with the right to bear arms outside the home during the upcoming term in a case court watchers are calling significant because it’s been more than a decade since the justices weighed the limits of the Second Amendment.

Democrats are concerned the 6-3 conservative majority on the high court will curtail the government’s ability to impose regulations and requirements on gun ownership.

Justice Amy Coney Barrett’s presence on the bench — she’s one of the three Supreme Court picks former President Donald Trump made during his one term in office — especially worries progressives because of a pro-gun opinion she wrote while serving as a judge on the U.S. Circuit Court for the Seventh Circuit.

“Gun rights advocates are hoping that her addition will make five justices who are more willing to take a more active role and start striking down what most people consider gun safety rules,” said Elliot Mincberg, senior fellow with People for the American Way.

While on the 7th Circuit, Justice Barrett authored a dissent, disagreeing with her colleagues over bans on convicted felons possessing firearms.



In the case, a nonviolent felon challenged the restriction on Second Amendment grounds. Justice Barrett’s position was that legislators have an interest in stripping violent felons from owning guns — not nonviolent felons.

Her dissent was lauded by gun rights’ supporters.

But in the New York case, the justices will consider New York’s scheme on granting a license to carry to applicants.

Two men and the New York State Rifle and Pistol Association are challenging the state’s law requiring anyone who wants to carry a handgun outside the home to apply for a license and show “proper cause” for the need to carry the gun.

Robert Nash was denied his license despite pointing to a string of robberies in his neighborhood and verifying that he had taken an “advanced firearm training course.” 

Brendan Koch, similarly, applied for a license, noting his “extensive experience” with handling firearms in a safe manner.

But New York officials denied both men their licenses, saying they did not show a “proper cause” for carrying a gun in self-defense.

The men and the New York gun rights group argue courts have split rulings over a state’s discretion in denying the right to keep and bear arms outside the house.

“Despite the wealth of authority confirming that the Second Amendment guarantees the people’s right to keep and bear arms for self-defense outside the home, several courts of appeals continue to resist that conclusion, leaving the law in a state of chaos and the fundamental right to carry a firearm dependent on where one lives,” they argued in court papers.

But the state of New York contends the Second Amendment right is not unlimited and that the state has had laws regulating the carrying of firearms in public since 1913. They said it’s not impossible to meet the “proper cause” requirement.


“This flexible standard, which numerous New York residents have successfully satisfied, generally requires a showing that the applicant has a nonspeculative need for self-defense,” the state’s court filing read.

The lower courts ruled for New York officials, upholding the state’s licensing scheme. But the men took the case to the high court and at least four of the justices voted to hear the legal conflict, announcing in April they would review the case.

Lawyers for both sides will present oral arguments in person before the justices on Nov. 3.

A decision is expected by the end of June next year. The case is New York State Rifle & Pistol Association v. Kevin P. Bruen, superintendent of New York State Police.

Carrie Severino, chief counsel for the Judicial Crisis Network, said strict licensing schemes for carrying a gun outside the house are a problem across the country — not just in New York.

“It really has to do with the overlap of the open carry and closed carry laws that work together to make it impossible for individuals to have a gun in any sense outside their home,” she said. “That is something that is going to have an impact much further than New York.”

But she views the conservative majority on the high court as encouraging, saying there are justices who will protect constitutional rights.

It’s been about a decade since the justices grappled with the limits of the Second Amendment. In District of Columbia v. Heller, the high court ruled 5-4 that it was unlawful for D.C. officials to restrict the possession of firearms inside the home.

At the time, the makeup of the high court was much different. Five of the justices who took part in considering the Heller case are no longer on the bench.

Chief Justice John G. Roberts Jr., Justice Clarence Thomas, Justice Samuel A. Alito Jr. and Justice Stephen G. Breyer were all on the court at that time — and they still remain on the bench. All but Justice Breyer ruled against the District of Columbia’s restriction.

Daniel Goldberg, legal director for the Alliance for Justice, said it’s “deeply concerning” that the new 6-3 conservative majority with Mr. Trump’s three appointments will now weigh the right to carry firearms outside the home.

“President Trump — backed by the NRA — made clear that one of his litmus tests was justices that would turn back the clock when it came to the ability of the state and local governments to protect citizens from gun violence,” Mr. Goldberg said.

“I hope I am wrong, but I think these justices — the ultraconservative justices on the court — are on the court with the backing of the NRA, and I think are teed up to handcuff the ability of local officials to keep their citizens safe,” he added.

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