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The Supreme Courts ruling in New York State Rifle & Pistol Association v. Bruen, expected by mid-2022, could declare a New York state restriction on carrying concealed handguns in public places unconstitutional.

Such a ruling in favor of the plaintiffs, which include a National Rifle Association affiliate, could loosen gun regulations in many parts of the country.

In my view as a Second Amendment scholar, this case is also noteworthy in that how the court reaches its conclusion could affect the Second Amendment analysis of all weapons laws in the future. The court is set to hear oral arguments on Nov. 3.

In 1911, after an increase in homicides, New York instituted a handgun permitting system. In 1913, the permitting system was amended to address concealed carrying.

For more than a century, someone seeking to carry a concealed handgun for self-defense in the state has needed to file a permit application showing that they have what the law calls proper cause.

To obtain an unrestricted permit, applicants must demonstrate a special need for self-protection distinguishable from that of the general community, such as by showing they are being stalked.

New Yorks attorneys defend this restrictive approach to issuing concealed carry permits as an effective means to reduce gun violence. In 2020, there were 43,592 gun deaths in the United States, including suicides and homicides. There are also over 80,000 non-fatal firearm injuries each year.

New York has some of the strictest gun laws in the country, and its homicide rate is below the national average.

Robert Nash and Brandon Koch were denied unrestricted concealed carry permits because a judge determined that they did not satisfy New Yorks proper-cause standard.

Instead, Koch was issued a license to carry a concealed handgun for self-defense while traveling to and from work. Both plaintiffs licenses also permit them to carry concealed handguns for hunting and target practice, and for self-defense in areas not frequented by the general public.

Along with the NRAs New York affiliate, Nash and Koch contend that these limitations on their ability to carry a concealed handgun violate their right to bear arms. They assert a broad view of the right to carry a handgun, one that extends virtually whenever and wherever the need for self-defense might arise.

New Yorks law defies that conception of the Second Amendment.

In considering Bruen, the Supreme Court will focus on the meaning of an important precedent: District of Columbia v. Heller.

When the Supreme Court issued its Heller ruling in 2008, a 5-4 majority struck down Washington, D.C.s ban on the possession of handguns in the home. The court held for the first time that the Second Amendment protects an individuals right to keep and bear arms.

Writing for the majority, the late Justice Antonin Scalia declared that the central component of the Second Amendment was not a well regulated militia, but rather the inherent right of self-defense.

But the majoritys decision included cautionary language that lower-court judges have since relied on to uphold gun laws.

The right secured by the Second Amendment is not unlimited and is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose, Scalia wrote. His opinion even contained a list of presumptively lawful regulatory measures, such as restrictions on the possession of firearms by felons or bans on carrying them in sensitive places like schools and government buildings.

The NRA and other gun rights supporters have bristled at the general acceptance by judges of the constitutionality of laws restricting firearm use.

That discontent culminated in Bruen.

If the court strikes down New Yorks law, Americans in eight states could expect an increase in the number of people legally carrying handguns in their communities. Anyone who wants to carry a concealed handgun would have an easier time doing so.

Bruen could also be a turning point for how judges evaluate all Second Amendment cases whether theyre about assault weapons, Tasers or felon-in-possession offenses.

Until now, judges have generally assessed whether such restrictions are justified by current public safety concerns.

Many gun rights advocates are asking the Supreme Court to reject that approach. Instead, they want judges to decide cases on the sole basis of history and tradition unless the judiciarys interpretation of the text of the Second Amendment resolves the issue. This is known as the text, history and tradition test.

Justice Brett Kavanaugh is credited with first articulating this test in a dissent he issued prior to his rise to the Supreme Court.

Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett all have embraced similar judicial philosophies to some degree.

But theres a catch: Guns have always been regulated in America.

New Yorks regulation has been on the books for over a century and had a legacy that extended back even farther.

If the justices abandon a conventional approach for the text, history and tradition test, I would expect a new round of lawsuits over weapons laws that have already survived prior court challenges. Gun rights advocates would likely, for example, sue over restrictions on large-capacity magazines or safe storage requirements in places where those issues have already been resolved.

This litigation would call on judges to rule on the sole basis of a difficult historical exercise: comparing modern laws addressing modern guns and contemporary gun violence to the laws, practices and weapons of a bygone era.

The court has three main options.

It could uphold New Yorks law. It could strike it down. Or it could find a middle ground, such as issuing a narrow ruling that punts big questions about gun restrictions down the road.

Chief Justice John Roberts has steered his colleagues toward narrow rulings before. But he will hold little sway if the three justices former President Donald Trump appointed team up with Samuel Alito and Thomas, the courts two other conservatives, on a far-reaching majority opinion.

Trump conferred with the NRA before nominating Gorsuch, Kavanaugh and Coney Barrett all of whom received the gun groups blessing.

The ruling will underscore the significance of their presence on the court.

Ruben is an assistant professor of law at Southern Methodist University. This piece was originally published by the Conversation.

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Opinion: Respect the Second Amendment history and tradition, of regulating gun ownership - Houston Chronicle

October 06, 2021

Washington, D.C.--U.S. Senator Mike Crapo (R-Idaho) led nine Republican colleagues in introducing legislation that would bring parity to gun owners using public lands. The Recreational Lands Self Defense Act would restore Second Amendment rights of individuals recreating on lands managed by the U.S. Army Corps of Engineers (Corps). Co-sponsors of the legislation include Senators Jim Risch (R-Idaho), Rick Scott (R-Florida), Thom Tillis (R-North Carolina), Mike Braun (R-Indiana), Roger Marshall (R-Kansas), John Barrasso (R-Wyoming), Ted Cruz (R-Texas), Mike Rounds (R-South Dakota) and Cynthia Lummis (R-Wyoming).

The inability to carry firearms on Corps land is inconsistent with regulations governing public, federally-owned lands, and a violation of the intent of the Second Amendment said Senator Crapo. Enabling Americans to carry firearms on land managed by the Corps will allow law-abiding citizens to protect themselves and provide needed consistency across federal lands to reduce the complexity of tracking where one federal agencys land management ends and anothers begins.

The federal prohibition preventing individuals from exercising their Second Amendment rights on U.S. Army Corps land is inconsistent and unconstitutional, said Senator Risch. Arbitrary regulations based on often unmarked jurisdictional boundaries do nothing but punish law-abiding citizens. This bill will restore the right to bear arms for sportsmen and women recreating on some 12 million acres of federal lands.

Im a strong supporter of the Second Amendment and take seriously governments role in protecting Americans constitutional right to keep and bear arms, said Senator Rick Scott. This bill makes a commonsense fix to current law to allow Americans to exercise their constitutional rights on federally-managed Army Corps land.

We must recognize that the right to bear arms should include Army Corps of Engineers lands, said Senator Tillis. The law currently states that law-abiding gun owners may carry in National Parks and National Forests, but does not extend these same protections to lands owned by the Army Corps. I am proud to work with my colleagues to correct this problem and ensure that the Second Amendment is protected on public lands.

It is long overdue that we remove the unnecessary federal restriction on state law and align federal policy to allow Americans to express their Second Amendment rights on Corps land, said Senator Braun. The Recreational Lands Self Defense Act will do just that by aligning firearm policy on Corps land with the Department of the Interior precedent.

Almost 50 years ago, Americans Constitutional right to bear arms on land under the jurisdiction of the U.S. Army Corps of Engineers was stripped by the federal government, said Senator Marshall. This legislation restores our Second Amendment rights on public lands overseen by the Army Corps, leaving the American peoples ability to carry a firearm for self-defense or recreational purposes to the discretion of state and local governments protecting law abiding gun owners from further federal overreach.

Every day, people across Wyoming responsibly use their Second Amendment rights to keep and bear arms, said Senator Barrasso. Our legislation will make sure people in Wyoming and other public land states can exercise these constitutionally protected rights on lands managed by the U.S. Army Corps of Engineers.

I am proud to join Sen. Crapo on this bill to restrict federal overreach and restore Second Amendment rights for law-abiding gun owners on land controlled by the U.S. Army Corps of Engineers, said Senator Cruz. This bill protects the right to bear arms on this public, federally owned land as long as it is consistent with state law a right that should never have been removed from Texans and Americans in the first place.

For decades, Americans Second Amendment rights have been checked at the entrance to federal land under U.S. Army Corps of Engineers management, said Senator Lummis. Nearly 50 percent of Wyoming is federal land, and restoring this constitutional right is long overdue. Im proud to work with Senators Mike Crapo, John Barrasso, and other colleagues to end this ridiculous infringement of Americans liberties.

Under current law, an individual may carry a firearm on lands managed by the U.S. Department of Interior and U.S. Department of Agriculture, including National Parks and National Forests, as long as it is consistent with state law. The Recreational Lands Defense Act would treat Army Corps land in the same manner, allowing parity on nearly 12 million acres of Army Corps recreation lands. It would not change current legal prohibition of guns in federal facilities.

Full text of the bill can be found here.

###

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Crapo Leads Introduction of Legislation to Protect Second Amendment Rights on Federal Land | US Senator Mike Crapo of Idaho - Senator Mike Crapo

The Supreme Court is expected to soon hear New York State Rifle & Pistol Association (NYSRPA) v. Bruen, challenging a New York law that allows judges and police commissioners to deny licenses, to carry handguns for self-defense away from home, to applicants they deem do not have proper cause.

As a result, applicants who want to exercise the individual right to possess and carry weapons in case of confrontation, as the Supreme Court put it in District of Columbia v. Heller (2008), are routinely turned down. New York is one of eight heavily Democrat states with this sort of law, the others being California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island.

In The Right To Bear Arms: A Constitutional Right Of The People Or A Privilege Of The Ruling Class?, Second and Fourteenth Amendment scholar Stephen P. Halbrook shows that in this part of the world, from day one until well after the Second Amendments ratification, carrying handguns and other arms for protection, concealed or openly, away from home (without a license) was lawful, thus within the scope of the right to arms as understood by the Framers of the Constitution and Bill of Rights.

However, in the 1800s, state legislatures began prohibiting the carrying of weapons concealed, state courts mostly let them get away with itan exception being the Kentucky Supreme Court, in Bliss v. Commonwealth, 1822and into the 20th century most states kept those blanket prohibitions or prohibited carrying without a license that officials generally refused to issue.

Most of those states have since switched to shall issue laws, which require that licenses be issued to applicants who meet objective standards concerning their age, lack of a criminal record, and so on. Today, 41 states are shall issue, Vermont has never prohibited or required a license for carrying concealed or openly, and those 42 states account for three-fourths of the nations population.

Twenty of the 41, plus Vermont, have constitutional carry laws, so named because, as during the founding era, they dont prohibit or require a license for carrying a handgun concealed or openly. (The 20 states have licensing systems for people who, during travel, carry in states that require licenses.) Fifteen states require a license to carry concealed, but not openly.

In July, a conservative commentator wrote that we should be happy that the Supreme Court is less bad now than at any time during the last 50 years. Another view is that we live in the present, thus should support the court when it rules correctly and oppose it when it rules incorrectly or refuses to rule out of fear of Democrats court-packing and term-limit threats, or because no one on the court is comfortable with Americans being armed to the extent the Framers intended.

We may find out which view of the court is more insightful in NYSRPA. If there are five justices who care about original intent, New York will lose, because its law is at odds with the Second Amendments text and legislative history, and the history of the right to arms leading to the amendments adoption, and it denies New Yorkers their Fourteenth Amendment right to equal protection under the law.

But thats a big if. In Heller, Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas were part of the majority that rejected original intent to justify banning guns quintessentially within the scope of the right to arms.

They began with the courts confused opinion in U.S. v Miller (1939). Miller correctly recognized that the Second Amendment guarantees an individual right not limited to militiamen, but incorrectly suggested the right is limited to arms that have some reasonable relationship to the preservation or efficiency of a well regulated militia.

Adding to the confusion, it suggested that examples of such arms include ordinary military equipment (which includes machineguns, federal laws catch-all for machine guns and all other fully automatic firearms), but also any other arms that could contribute to the common defense, which would mean all arms. Miller also noted the obvious, that militiamen commonly owned arms in common use.

Heller came to the court from the U.S. Court of Appeals for the District of Columbia Circuit, where it was known as Parker v. District of Columbia (2007). Parker correctly struck down D.C.s handgun ban, but on the wrong basis, saying that because handguns are Arms referred to in the Second Amendment, it is not open to the District to ban them. It reached that conclusion because handguns were common in the founding era, militia officers were required to have them by the second Militia Act of 1792, and [t]he modern handgun (is) a lineal descendant of that founding-era weapon, and it passes Millers standards.

Parkers error was twofold: First, while handguns were common in the founding era and modern handguns are their lineal descendants, thats not why banning them is unconstitutional. The Framers adopted the Second Amendment to guarantee the right to arms as a means to an endthe security of a free State against tyranny and, it went without saying, common criminals and other threats. The distinction is important because, in the future, guns as we know them will be useless for defense against tyranny, and the only arms that will be useful will have no lineage to arms known during the founding era.

Second, knowing what arms founding-era militiamen possessed may be interesting to Revolutionary War reenactors, antique gun collectors, and historians, but it doesnt limit the right of the people, and to the extent Millers standards suggest otherwise, Parker should have ignored them.

The burden of proof when challenging a gun ban should not be upon plaintiffs to show why they should be allowed to have the gun (e.g., version of a founding-era gun), it should be upon them to show why the government doesnt have the power to ban it, or upon the government to show why it has that power. In June, Judge Roger Benitez ruled the latter in Miller v. Bonta, striking down Californias assault weapon ban, saying [t]he command of the Amendment is that the right to keep and bear arms shall not be infringed. It . . . is the government that must carry the burden of justifying its restriction of Second Amendment rights.

However, even if the burden is upon plaintiffs, its easy to bear. While the Framers understood that privately kept arms had always been used for defense against common criminals, the amendments political objective was to protect the constitutional order against tyranny.

Thus, the only arms the government may ban are those that would give an individual a degree of power against modern tyrannical enemies significantly greater than the degree of power an individual in the founding era had with his arms against the tyrannical enemies of his dayarms that would give an individual a degree of tyranny-fighting power the Framers intended to be distributed among the people.

In his brief in Heller, then-Solicitor General Paul Clement (now counsel for petitioners in NYSRPA) complained that under Parkers standard, the 1986 ban on new machineguns might be unconstitutional, because M16s (which, though not machine guns, can fire fully automatically) are the most common guns in the organized militia (the National Guard). During oral arguments, Clement added, I think it is more than a little difficult to say that the one arm thats not protected by the Second Amendment is that which is the standard issue armament for the National Guard. In other words, to justify banning M16s, the court would have to get creative.

Heller was about handguns, not machineguns, and the court should have said so. Instead, the majority caved to Clement and, before dealing with the former, went after the latter.

Read in isolation, Millers phrase part of [the] ordinary military equipment could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Acts restrictions on machineguns . . . might be unconstitutional. . . . Millers ordinary military equipment language must be read in tandem with what comes after: [O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

The court was wrong. First, there was no need to read any part of Miller in isolation. Miller endorsed the right to ordinary military equipment, such as machineguns, but also to other arms that could contribute to the common defense.

Second, its not only the National Firearms Acts (1934) registration and tax provisions the constitutionality of which might be threatened. The Gun Control Act (1968) prohibits the same guns importation, the McClure-Volkmer Act (1986) prohibits their domestic manufacture, and about half the states prohibit their possession.

Third, Heller didnt read Millers parts in tandem. It ignored Millers endorsement of the right to military and all other arms that could be used for the common defense, and accepted only its observation that militiamen commonly owned commonly owned guns.

On that basis, it claimed machineguns can be banned because they arent common, despite being the most common guns in the organized militia. And while its true theyre not common among the unorganized militia and the people generally, the court neglected to explain why: the federal and state laws mentioned in the previous paragraph.

Finally, whether to apologize or to add insult to injury, the court admitted it was at odds with the Framers intent:

It may be objected that if weapons that are most useful in military serviceM-16 (sic) rifles and the likemay be banned, then the Second Amendment right is completely detached from the (amendments) prefatory clause. . . . But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

If Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett join Chief Justice Roberts and Justices Alito and Thomas in thumbing their noses at the Framers in NYSRPA, like the latter three did in Heller, the court will deserve to go down not as the least bad of the last 50 years, but as one of the most anti-constitutional activist courts in American history.

See more here:
Can The Supreme Court Be Trusted On The Second Amendment? - The Federalist

WASHINGTON, D.C. U.S. Sens. Ted Cruz (R-Texas), member of the Senate Judiciary Committee, Mike Crapo (R-Idaho), Jim Risch (R-Idaho), Rick Scott (R-Fla.), Thom Tillis (R-N.C.), Mike Braun (R-Ind.), Roger Marshall (R-Kansas), John Barrasso (R-Wyo.), Mike Rounds (R-S.D.), and Cynthia Lummis (R-Wyo.) today introduced a bill to bring parity to gun owners using public lands.

The Recreational Lands Defense Act would restore Second Amendment rights of individuals recreating on lands managed by the U.S. Army Corps of Engineers.

Under current law, an individual may carry a firearm on lands managed by the U.S. Department of Interior and U.S. Department of Agriculture, including National Parks and National Forests, as long as it is consistent with state law.

The Recreational Lands Defense Act would treat Army Corps land in the same manner, allowing parity on nearly 12 million acres of Army Corps recreation lands. It would not change current legal prohibition of guns in federal facilities.

Upon introduction, Sen. Cruz said:

I am proud to join Sen. Crapo on this bill to restrict federal overreach and restore Second Amendment rights for law-abiding gun owners on land controlled by the U.S. Army Corps of Engineers. This bill protects the right to bear arms on this public, federally owned land as long as it is consistent with state law a right that should never have been removed from Texans and Americans in the first place.

Sen. Crapo said:

The inability to carry firearms on Corps land is inconsistent with regulations governing public, federally-owned lands, and a violation of the intent of the Second Amendment. Americans to carry firearms on land managed by the Corps will allow law-abiding citizens to protect themselves and provide needed consistency across federal lands to reduce the complexity of tracking where one federal agencys land management ends and anothers begins.

Sen. Risch said:

The federal prohibition preventing individuals from exercising their Second Amendment rights on U.S. Army Corps land is inconsistent and unconstitutional. Arbitrary regulations based on often unmarked jurisdictional boundaries do nothing but punish law-abiding citizens. This bill will restore the right to bear arms for sportsmen and women recreating on some 12 million acres of federal lands.

Sen. Scott said:

Im a strong supporter of the Second Amendment and take seriously governments role in protecting Americans constitutional right to keep and bear arms. This bill makes a commonsense fix to current law to allow Americans to exercise their constitutional rights on federally-managed Army Corps land.

Sen. Tillis said:

We must recognize that the right to bear arms should include Army Corps of Engineers lands. The law currently states that law-abiding gun owners may carry in National Parks and National Forests, but does not extend these same protections to lands owned by the Army Corps. I am proud to work with my colleagues to correct this problem and ensure that the Second Amendment is protected on public lands.

Sen. Braun said:

It is long overdue that we remove the unnecessary federal restriction on state law and align federal policy to allow Americans to express their Second Amendment rights on Corps land. The Recreational Lands Self Defense Act will do just that by aligning firearm policy on Corps land with the Department of the Interior precedent.

Sen. Marshal said:

Almost 50 years ago, Americans Constitutional right to bear arms on land under the jurisdiction of the U.S. Army Corps of Engineers was stripped by the federal government. This legislation restores our Second Amendment rights on public lands overseen by the Army Corps, leaving the American peoples ability to carry a firearm for self-defense or recreational purposes to the discretion of state and local governments protecting law abiding gun owners from further federal overreach.

Sen. Barrasso said:

Every day, people across Wyoming responsibly use their Second Amendment rights to keep and bear arms. Our legislation will make sure people in Wyoming and other public land states can exercise these constitutionally protected rights on lands managed by the U.S. Army Corps of Engineers.

Sen. Lummis added:

For decades, Americans Second Amendment rights have been checked at the entrance to federal land under U.S. Army Corps of Engineers management. Nearly 50 percent of Wyoming is federal land, and restoring this constitutional right is long overdue. Im proud to work with Senators Mike Crapo, John Barrasso, and other colleagues to end this ridiculous infringement of Americans liberties.

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Senators introduce bill to protect Second Amendments rights on federal land - The Highland County Press

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Montpelier City Council a resolution to protect constitutional rights and second amendment - The Herald Journal