by Margot Cleveland at The Federalist
Last week the U.S. Supreme Court heard oral arguments in the first gun rights case to reach the high court in more than a decade. The case, New York State Rifle and Pistol Assoc. v. Bruen, concerns the constitutionality of New York’s law banning the carrying of handguns outside the home for self-defense, absent a license—something the state will only issue if the applicant establishes a unique need for self-defense.
For an overview of the case, read here. A more in-depth analysis of both the case and the current state of Second Amendment jurisprudence is available here. For six take-aways from the argument, read along.
1. New York Concedes The Second Amendment Secures an Individual’s Right to Bear Arms Outside the Home
When the individual New Yorkers challenging the law, Robert Nash and Brandon Koch, along with the New York State Rifle and Pistol Association, first asked the Supreme Court to hear their appeal, they sought to entice the high court to take the case by stressing how important the underlying constitutional principle at issue is, writing: “Perhaps the single most important unresolved Second Amendment question remaining” after Heller and McDonald established the individual right to bear arms, “is whether the Second Amendment secures the individual right to bear arms for self-defense where confrontations often occur: outside the home.”
Not only was that question unanswered by the Supreme Court in Heller and McDonald, but after Heller and McDonald the lower courts disagreed on the scope of the Second Amendment outside of one’s house.
But last Monday’s argument made the issue a non-issue, with New York conceding the question. The “history is so clear that New York no longer contests that carrying a handgun outside of the home for purposes of self-defense is constitutionally protected activity,” Paul Clement, the attorney arguing on behalf of the petitioners challenging the state’s restrictive licensing law, stressed during oral argument.
2. Nice Little Right—I Mean, Privilege—You’ve Got There
While New York conceded the Second Amendment applies beyond one’s threshold, Solicitor General Barbara Underwood quickly forgot that the Bill of Rights protects rights—it doesn’t define privileges. For instance, in discussing the regulation of firearms outside the home, Underwood started to say that “these regulations are all an effort to accommodate the right,” but then backtracked, saying the regulations seek to “respect the right of self-defense.”
The slip of the tongue was telling, however: It means New York state doesn’t truly view the Second Amendment right to keep and bear arms as a right, but as a privilege it will accommodate — when governmental officials deem it appropriate.
Justice Samuel Alito exposed this reality more clearly when he asked New York’s solicitor general whether an employee leaving a New York City building at midnight had a right under the state’s licensing scheme to carry a concealed weapon if she feared walking home through a high-crime area. Underwood acknowledged that under the New York licensing scheme, the cleaning woman would not be entitled to a permit.
“How is that consistent with the core right to self-defense, which is protected by the Second Amendment?” Justice Alito countered.
“Because the core right to self-defense doesn’t . . . allow for all to be armed for all possible confrontations in all places,” New York’s attorney replied.
While true, the response ignores the reality of New York’s position, which Justice Alito spelled out: Celebrities, retired police officers, and judges can carry guns, but not “the kind of ordinary people who have a real, felt need to carry a gun to protect themselves.”
Several times throughout the argument, the lawyer for those challenging New York’s law stressed the same point, telling the justices: “In order to exercise a constitutional right that New York is willing to concede extends outside the home, you have to show that you have an atypical need to exercise the right that distinguishes you from the general community. That describes a privilege. It does not describe a constitutional right.”