Op-ed views and opinions expressed are solely those of the author.
The United States Supreme Court recently agreed to take up a very important gun rights case. As reported by Fox News, “the case, brought by the New York State Rifle & Pistol Association, challenges a New York law that prohibits citizens from carrying a gun outside their home without a license that the state makes difficult to obtain.” The wrinkle, of course, is that in order to obtain a license, a citizen must first convince the state that he or she has “proper cause” to carry a firearm. As such, the Supreme Court will decide “whether New York’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment?”
In District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects “the individual right to possess and carry weapons in case of confrontation.” Subsequently, in McDonald v. City of Chicago, the high court held that this right “is fully applicable to the States.” The question, then, is whether this right is limited to the home, or whether it extends outside of the home.
The first potential problem with the applicable New York law is that is appears to prevent law-abiding citizens from exercising their Second Amendment rights. Specifically, by conditioning the exercise of those rights (i.e., who may and may not carry) on a showing of “proper cause,” those deciding whether “proper cause” exists are given the power to determine who may exercise their Second Amendment rights, which are granted to all Americans (absent certain exceptions).
In their Petition for Writ of Certiorari, counsel for Petitioners assert that the term “proper cause” is not defined. Specifically:
New York law does not define “proper cause.” Instead, New York courts have fashioned “a substantial body of law instructing licensing officials on the application of [the ‘proper cause’] standard.” In particular, these courts have ruled that an applicant seeking a license to carry a handgun for self-defense “must ‘demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.’” Thus, “‘[a] generalized desire to carry a concealed weapon to protect one’s person and property does not constitute “proper cause.”’ Good, even impeccable, moral character plus a simple desire to exercise a fundamental right is, according to these courts, not sufficient. Nor is living or being employed in a “high crime area.” Instead, it is only by demonstrating that he or she is “special” (i.e., not a typical law-abiding citizen) and by showing an atypical reason for wanting to carry a handgun for self-defense that an individual applicant can hope to satisfy New York’s “proper cause” test. As a practical matter, New York’s insistence upon something atypical precludes typical New Yorkers from carrying their handguns for self-defense.
Here, one of the petitioners requested a permit to carry a handgun. To support his request, he pointed to the fact that he had completed an advanced firearm(s) training course, and referenced a string of robberies in his neighborhood. Notwithstanding, his request was denied because he “did not demonstrate a special need for self-defense that distinguished him from the general public.” In other words, although he was concerned for his safety, his risk was no different from the risk to the general public.
Not only does the New York law seemingly and arbitrarily prohibit people from exercising their Second Amendment rights, it is also subject to abuse. For example, what mechanisms exist to prevent those deciding the issue of “proper cause” from injecting their own personal biases and/or animus into their decisions? Also, assuming that the right to carry and bear arms to defend against confrontation extends outside of the home, what right does the state of New York have to decide who may or may not exercise their right pursuant to an arbitrary, subjective, and poorly-defined standard? As counsel for Petitioners succinctly point out, “Regimes like New York’s “proper cause” criteria ration constitutional rights instead of protecting them. Government may not reserve to a select few what the Constitution guarantees to all.”
There is very little doubt that confrontations can occur both inside and outside of the home. Since the Second Amendment protects the right to possess and carry weapons in case of confrontation, and since confrontations oftentimes take place away from the home, it would seem only plausible that the right to carry a firearm for purposes of self-defense would also extend outside of the home.
Petitioners raise another interesting argument. Focusing on the specific language of the Second Amendment, Petitioners point out that the right to “keep” arms is not the same as the right to “bear” arms. If the rights were the same, why would both terms be included? Why would there be a need to “keep” and to “bear” arms if both terms were limited to the home?
Counsel for Petitioners suggest that “[u]nderstanding ‘bear’ to protect at least some level of carrying in anticipation of conflict outside of the home provides the necessary gap between ‘keep’ and ‘bear’ to avoid rendering the latter guarantee as mere surplusage.” They also suggest that the term “militia,” as used in the Second Amendment, further evinces an intent to extend the right to carry for self-defense outside of the home. After all, if the right to bear arms was “codified at least in part to ensure the viability of the militia,” how could a militia exist and defend itself if its members were unable to carry outside of their homes?
Unfortunately, there is a split among the various courts. As counsel for Petitioners explain in their Petition for Writ of Certiorari:
The D.C. Circuit has seen these restrictive regimes for what they are—“necessarily a total ban on most D.C. residents’ right to carry a gun”—and joined the Seventh Circuit in concluding that the government may not prohibit ordinary law-abiding citizens from carrying handguns for self-defense. See Wrenn v. District of Columbia, 864 F.3d 650, 666 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012). But the Second Circuit upheld New York’s materially identical regime, on the basis that the Second Amendment right of self-defense is subject to state control. In other words, in its view, the Second Amendment may protect a fundamental, individual right of the “people,” but the state may fundamentally and individually dictate which people (if any) may exercise that right. See Kachalsky v. Cty. of Westchester, 701 F.3d 81 (2d Cir. 2012). This view is untenable.
Unfortunately, the Second Circuit is not alone in that view. The First, Third, and Fourth Circuits have likewise endorsed restrictions that cut off the right to keep and bear arms at a homeowner’s door. Common sense dictates that the need for armed self-defense (i.e., cases of confrontation) is not confined to the interior of a home. And yet, these courts seem unconcerned with regimes in which the exercise of a right that the Constitution guarantees to all “the people” is instead deemed a crime unless one can preemptively convince a state official that she enjoys an especially good reason for wanting to exercise it.
Clearly, the Supreme Court’s decision, in this case, will be precedent-setting. It will also help to resolve the split among the various courts. Finally, the ruling will have far-reaching implications. A ruling against the Petitioners, in this case, could significantly erode the rights under the Second Amendment and could lead other states to pass laws similar to that of New York. On the other hand, a ruling in their favor could serve to protect the Second Amendment rights that many Americans cherish.
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