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12/21/2020

Second Amendment Public Carry Case now on Petition to the Supreme Court
Michael Ramsey

New York State Rifle and Pistol Association Inc. v. Corlett may be the case to finally get the Supreme Court to answer the question whether the Second Amendment protects a right to carry firearms in public. If so, it is likely to have substantial originalist implications.  Here is the summary statement from the petition for certiorari, filed December 17 by Paul Clement: 

Perhaps the single most important unresolved Second Amendment question after this Court’s landmark decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), is whether the Second Amendment secures the individual right to bear arms for self-defense where confrontations often occur: outside the home.

The text, history, and tradition of the Second Amendment and this Court’s binding precedents compel the conclusion that the Second Amendment does indeed secure that right. As this Court held in Heller, the “right of the people to keep and bear Arms” protects at its core “the individual right to possess and carry weapons in case of confrontation.” 554 U.S. at 592. A law that flatly prohibits ordinary law-abiding citizens from carrying a handgun for self-defense outside the home cannot be reconciled with the Court’s affirmation of the individual right to possess and carry weapons in case of confrontation. The Second Amendment does not exist to protect only the rights of the happy few who distinguish themselves from the body of “the people” through some “proper cause.” To the contrary, the Second Amendment exists to protect the rights of all the people.

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. 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. See Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018); Drake v. Filko, 724 F.3d 426 (3d Cir. 2013); Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013). Such decisions stand in clear conflict with the D.C. Circuit’s Wrenn decision and the Seventh Circuit’s Moore decision. The circuits are thus in open and acknowledged division over the constitutionality of laws denying ordinary law-abiding citizens their right to carry a handgun for self-defense. This Court should grant certiorari, resolve this untenable circuit split, and restore to all “the people” protected by the Second Amendment the right to keep and bear arms.

As the petition notes later, panels of the Ninth Circuit have twice upheld the right, using strongly originalist analyses, but each decision was vacated by the en banc process. Peruta v. Cty. of San Diego, 742 F.3d 1144, 1167 (9th Cir. 2014), vacated, rev’d on reh’g en banc, 824 F.3d 919, 942 (9th Cir. 2016); Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018), vacated, reh’g en banc granted, 915 F.3d 681 (9th Cir. 2019). (My former student Alan Beck argued the latter case for the claimant.)

Via Robert VerBruggen at NRO, who comments:

Since the previous Supreme Court cases, some academics have purported to find strong evidence that, instead, the term ["bear arms"] overwhelmingly referred to military-related activity in Founding-era writings. I find their methods unimpressive — here’s a good demonstration of the problem with counting a term’s uses and pretending that’s the same as defining the term, and here’s a more positive take on the method that also discusses its limits. Further, their conclusion flies in the face of several direct analogues to the Second Amendment, including state declarations of rights. These provisions protected the right of the people to bear arms “for the defense of themselves and the state,” “for the defense of the state” (which would be redundant if “bear arms” inherently referred to the defense of the state), and even “for the purpose of killing game.” But I’m curious what the Court and especially its conservatives will make of this new evidence.