Explore The NRA Universe Of Websites

APPEARS IN News

The Right to Bear Arms Gets Its Day in Court

Monday, November 8, 2021

The Right to Bear Arms Gets Its Day in Court

November 3 was a historic day for constitutional rights in the United States, as the U.S. Supreme Court delved into a detailed and sophisticated exploration of the meaning and scope of the Second Amendment’s right to “bear” arms in public places, in a case brought by the New York State Rifle & Pistol Association (NRA’s affiliated association in New York). 

In 2008, the U.S. Supreme Court confirmed what was already clear to most Americans: the Second Amendment protects an individual right to keep and bear arms, including handguns, regardless of service in an organized militia.

In 2010, the high court ratified the equally straightforward principle that states and localities – and not just the federal government – are bound to respect that right.

Since then, however, the U.S. Supreme Court has remained virtually silent on the Second Amendment, with lower courts filling the vacuum by denying most Second Amendment challenges to gun control laws that came before them. 

It took over 10 years for the high court to revisit the meaning of the Second Amendment in depth.

Last Wednesday’s argument proved worth the wait, with the right to keep and bear arms at long last being treated with the dignity and respect accorded other constitutional rights, a treatment notably lacking in many of the lower court cases.

As in the 2008 and 2010 cases, it took a particularly unusual and sweeping restriction to command the justices’ attention. Those earlier cases involved what amounted to outright bans on the possession of handguns. The current case, New York State Rifle and Pistol Association v. Bruen, concerned New York’s may-issue regime for the licensing of concealed handgun carry, the state’s only lawful method for carrying a firearm outside one’s home for self-defense. New York’s scheme requires the presumptive denial of most applications, with only those showing an extraordinary need for self-defense that distinguishes them from the general population eligible for consideration.

In practice, this means that a New Yorker’s access to the Second Amendment right to bear arms depends on the person’s locality, the whims of local licensing officials, and – particularly in New York City – whether the person has been a public official or attained celebrity status. The right, in other words, is treated as a state-administered privilege for the few and the special.

The arguments in Bruen were notable for their length, depth, and the degree to which the gun control advocates defending the law departed from the more confident and sweeping assertions their counterparts typically make in the lower courts.

The justices heard nearly two full hours of argument by three highly-credentialed advocates. The resulting transcript is 136 pages long.

Representing the plaintiffs challenging the law was former U.S. Solicitor General Paul Clement, a man who has argued more cases before the Supreme Court than almost any lawyer alive today.

Defending New York’s law was New York State Solicitor General Barbara Underwood, and – in a special appearance on behalf of the Biden Administration – Brian Fletcher, Principal Deputy Solicitor General for the U.S. Department of Justice.

All of the court’s justices joined in the questioning of the litigants, with both sides being pressed to opine on complicated questions of law, history, and hypothetical scenarios.

The justices will certainly have their work cut out for them in sorting through the competing claims of the litigants and the numerous “friends of the court” that submitted briefs on a variety of topics. But several themes emerged during the argument that seemed to resolve issues that lower court cases (perhaps even disingenuously) treated as open questions, with the gun control side retreating from some of its bolder claims.

Underwood, for example, admitted on behalf of New York that, with regard to the Heller decision, she is “quite content to treat it as rightly decided” and has “no quarrel” with it.

More fundamentally, both Underwood and Fletcher treated as a given that the Second Amendment applies to carrying firearms in at least some public places for purposes of self-defense.

The gun control litigants also agreed that the legitimacy of gun control laws primarily hinges on the history and tradition of arms regulation in the United States, rather than on a “balancing of interests” that allows judges to put their thumbs on the scale for whatever side they happen to prefer.

All parties agreed, in other words, that the relevant question in the case is not if law-abiding Americans have a right to carry firearms in public for self-defense but whether there are sufficient precedents in American history for limiting that right as drastically as New York has.

In admissions that may come back to haunt them, the gun control litigants acknowledged that New York’s scheme is, at bottom, an attempt simply to restrict as much as possible the total number of firearms in the state, regardless of the risk profile of their possessors.  Clement, however, retorted: “In a country with the Second Amendment as a fundamental right, simply having more firearms cannot be a problem and can't be a government interest just to put a cap on the --the number of firearms.” 

The justices also probed at length for answers about what sorts of restrictions would still be permissible if New York had to recognize a right to bear handguns publicly as a general matter. This seemingly would not have been necessary if the consensus was that New York’s current regulations are permissible.

There are, of course, no guarantees that any court case will go any particular way.

The most any litigant can hope for is to put forth their best arguments before judges who are willing to give them serious consideration and who will be thorough and professional in rendering a final decision.

There was every indication those thresholds were met in the Bruen oral argument.

That, for now, is a substantial victory in vindicating the Second Amendment, one that was made possible by the NRA and its members and supporters.

TRENDING NOW
“[A]ll We Need You to Do is Give us the Gun”: U.K. Launches National Firearm Surrender Campaign

News  

Monday, May 23, 2022

“[A]ll We Need You to Do is Give us the Gun”: U.K. Launches National Firearm Surrender Campaign

On March 12, a two-week campaign was launched in the United Kingdom to encourage subjects of Her Majesty the Queen to surrender firearms, ammunition, weapons, and any other object even vaguely reminiscent of a gun ...

President Donald J. Trump to Address NRA Members at the 2022 NRA Annual Meetings and Exhibits in Houston, Texas

News  

Thursday, May 12, 2022

President Donald J. Trump to Address NRA Members at the 2022 NRA Annual Meetings and Exhibits in Houston, Texas

Former President Donald J. Trump will headline the 2022 NRA-ILA Leadership Forum on May 27, at the George R. Brown Convention Center in Houston.

Choke Point “Lite”

News  

Monday, May 23, 2022

Choke Point “Lite”

Ten years ago, the Obama Administration introduced “Operation Choke Point,” a program to weaponize the banking industry and financial service providers against certain lawful businesses and merchants. Implemented by Eric Holder’s Department of Justice and ...

ATF Partners with Anti-gun Researchers to Expand Agency’s Power

News  

Monday, May 23, 2022

ATF Partners with Anti-gun Researchers to Expand Agency’s Power

On May 17, the Department of Justice announced the release of a Bureau of Alcohol, Tobacco, Firearms and Explosives publication titled the National Firearms in Commerce and Trafficking Assessment (NFCTA). The report is the result of the ...

NRA Achieves Historical Milestone as 25 States Recognize Constitutional Carry

News  

Friday, April 1, 2022

NRA Achieves Historical Milestone as 25 States Recognize Constitutional Carry

Half the country will now enjoy the freedom to carry a handgun for self-defense without a permit from the state thanks to the tireless efforts of men and women of the National Rifle Association. 

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

New Jersey: “Mandatory Jail” Bill Scheduled for Senate Hearing Thursday

Wednesday, May 18, 2022

New Jersey: “Mandatory Jail” Bill Scheduled for Senate Hearing Thursday

Tomorrow at 10:00 a.m., the Senate Law & Public Safety Committee is scheduled to consider S.513, legislation which would create a rebuttable presumption of no bail for gun offenses.

California: Anti-Gun Bills Eligible for Floor Votes

Saturday, May 21, 2022

California: Anti-Gun Bills Eligible for Floor Votes

On Thursday, both the Assembly and Senate Appropriations Committees took up their suspense files prior to the fiscal deadline, passing a number of anti-gun bills and one pro-hunting bill. These bills will now be eligible ...

Hunter Biden Incident Shows that Gun Laws are for the Little People

News  

Monday, April 5, 2021

Hunter Biden Incident Shows that Gun Laws are for the Little People

There is a central hypocrisy at the heart of the gun control effort.

Alaska: Legislature Fails to Pass Pro-2A Legislation as it Adjourns

Friday, May 20, 2022

Alaska: Legislature Fails to Pass Pro-2A Legislation as it Adjourns

At midnight on Wednesday, the Alaska Legislature adjourned from its 2022 Legislative Session. 

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.