Category: Observation O’ The Day

This analysis is from a person who states they practiced Constitutional Law in D.C. Take is for what it is, but it appear quite reasonable to me.

It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. See Heller, 554 U. S., at 580. And no party disputes that handguns are weapons “in common use” today for self-defense. See id., at 627. The Court has little difficulty concluding also that the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense. Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of “bear” naturally encompasses public carry. Moreover, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation,” id., at 592, and confrontation can surely take place outside the home.

This is important because the antis continue to argue militia service is required.

This case finds that the Second Amendment applies to PEOPLE and that militia participation is not a requirement to exercising your 2A rights.

“Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context.”

Basically the Court is saying, look at the plain text of the 2A and the history that followed. That’s it. No balancing whether the government has a reason for the infringement. An infringement is an infringement and the law is unconstitutional if it infringes upon the 2A.

We then concluded: “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.”

“After reviewing the Anglo-American history of public carry, the Court concludes that respondents have not met their burden to identify an American tradition justifying New York’s proper-cause requirement. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor have they generally required law-abiding, responsible citizens to “demonstrate a special need for self-protection distinguishable from that of the general community” to carry arms in public.”

And here the Court finds that history does not support regulation like NYC has in place.

In Heller and McDonald, we held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. In doing so, we held unconstitutional two laws that prohibited the possession and use of handguns in the home. In the years since, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. Today, we decline to adopt that two-part approach.

In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

Again, NO scrutiny – merely, does this violate 2A? Yes or no.

“The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.”

Here’s your standard, folks.”

The constitutional right to bear arms in public for self- defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”

“We know of no other constitutional right that an individual may exercise only after demonstrating to government officials some special need.”

“And one scholar who canvassed 19th-century newspapers which routinely reported on local judicial matters, found only a handful of other examples in Massachusetts and the District of Columbia, all involving black defendants who may have been targeted for selective or pretextual enforcement.”

I’ll say it louder for those in the back:

Gun control has its origins in racism.

New York’s cannot characterize NYC a “sensitive-place” because there is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected generally by the New York City Police Department.

Remember folks: the Supreme Court has repeatedly ruled that the police have no obligation to protect you.

“Certain locations are sensitive places where arms carrying could be prohibited consistent with the Second Amendment.”

NYC as a whole is not one of these places.

“Expanding the category of sensitive places to simply all places of public congregation that are not isolated from law enforcement defines the category of sensitive places far too broadly. Respondents argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self defense.”

“Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.”

This is an originalist/plain view reading of the 2A. The Court goes on to shred NY’s arguments that historical regulations existed, citing that those regulations generally limited “dangerous or unusual” weapons or that they restricted using weapons to spread “fear and terror.”

“To confine the right to bear arms to the home would nullify half of the Second Amendment’s operative protections.“

They then proceed to call out America’s largest open-air shooting gallery:

“A Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower.”

“The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self- defense is no different. New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public.”

Boom. Headshot.

“The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense. In 43 States, the government issues licenses to carry based on objective criteria. But in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need. Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.

So essentially, they’re not just ripping up NYC’s licensing scheme – they’re canning the entire pistol permit (and now rifle-permit under the newest Hochul-signed law) scheme. They’re saying NYS (and the five others) cannot have a “may issue” and need to switch to “shall issue.”

Unfortunately, they do uphold a State’s right to require permits:

“To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ “shall-issue” licensing regimes, under which “a general desire for self-defense is sufficient to obtain a permit.”

“Because these licensing regimes to not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent law abiding, responsible citizens from exercising their Second Amendment right to public carry.”

The last sentence of that footnote about “shall-issue” licensing (FN 9) could become very significant:

“because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry”