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11/02/2021

New York State Rifle and Pistol Tomorrow (Updated)
Michael Ramsey

Likely the Supreme Court's most important originalism-oriented case this year, New York State Rifle & Pistol Association v. Bruen will be argued tomorrow (11/3).  The question presented is: 

Whether the state of New York's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

SCOTUSblog's summary of the case is here.  From the description of petitioners' arguments:

Starting with the text of the Second Amendment, [petitioners] stress that the Second Amendment protects two separate rights: the right to “keep” – that is, possess – arms, generally at home; and the right to “bear” – that is, carry, for confrontation or defense — arms, typically outside the home. The right to “bear” arms, the challengers posit, must mean something separate from the right to keep arms, or its inclusion in the amendment would be superfluous.

This reading, the challengers continue, is supported by the history of gun rights in England and the United States before the ratification of the Constitution, as well as the years that followed. That history is likely to be especially important to the court’s conservatives, who believe the Second Amendment should be interpreted according to its original understanding at America’s founding. Heller, which was written by former Justice Antonin Scalia, relied extensively on historical sources (though the dissenters in that case disputed Scalia’s historical analysis). And the court’s three newest justices – Neil Gorsuch, Kavanaugh, and Barrett – all have suggested that they favor an originalist approach to the Second Amendment, rather than the more functional approach that many lower courts have adopted.

The challengers say history is on their side. Neither the American colonies nor the early states barred their residents from carrying guns, they emphasize; indeed, they note, state and local governments sometimes required their residents to carry guns. And during the country’s early years, the challengers add, the only restrictions that courts recognized on the right to carry a gun for self-defense were “narrow” ones “on abusing that right to terrorize the people.” The history of freed slaves after the Civil War also confirms their interpretation, the challengers assert, as Congress and the federal government “insisted that securing their Second Amendment rights was critical to ensuring that they could protect themselves” – a belief that hinged on “the understanding that the Second Amendment guaranteed the right to carry arms outside the home for self-defense.”

Also at SCOTUSblog, Stephen P. Halbrook summarizes the textual and historical arguments for the claimants: In New York State Rifle, the court should look to text, history, and tradition.  For some recent discussion highlighted previously:

At Volokh Conspiracy, David Kopel: Corpus Linguistics and the Second Amendment

At the National Constitution Center, a podcast debate Is There a Constitutional Right to Concealed Carry? featuring Professor Kopel and former judge J. Michael Luttig, with Jeffery Rosen moderating.   More from Professor Kopel here: Luttig versus Kopel on the right to bear arms.

On SSRN,  Corpus Linguistics and Heller by James Cleith Phillips (Chapman University, Dale E. Fowler School of Law) and Josh Blackman (South Texas College of Law Houston).

At Volokh Conspiracy, Stephen Halbrook: The Right to Bear Arms in Historical Context

It seems probable that these textual and historical arguments will have substantial play in the case.  I'll say again, though, that I don't see how the Court can fully consider the scope of the right to bear arms if the case is limited to the question of concealed-carry licenses (the question presented literally is so limited).  The question should be "Whether the state of New York's denial of petitioners' applications for concealed-carry licenses for self-defense, taken with New York's other restrictions on the ability to carry arms in public, violated the Second Amendment."

UPDATE:  Some originalist counterpoints: 

At Slate, Saul Cornell (Fordham - History): Will the Supreme Court Create Universal Concealed Carry Based on Fantasy Originalism?

In the UC Davis Law Review (2021), Saul Cornell: The Right to Regulate Arms in the Era of the Fourteenth Amendment: The Emergence of Good Cause Permit Schemes in Post-Civil War America.