Yesterday, the Supreme Court heard oral arguments in New York State Rifle & Pistol Association v. Bruen, the first major gun case the Supreme Court has taken in over ten years.
This case challenges New York’s restrictive concealed carry law, which bans ordinary citizens from carrying a firearm unless they can show “good cause” – and the New York courts have said a desire for self-defense isn’t good enough.
So the question before the high court is this: Does the Second Amendment protect the right to BEAR arms as well as to CARRY them?
The answer is an unequivocal YES, as the National Foundation for Gun Rights legal team told the Supreme Court in a hard-hitting amicus brief filed back in July (click to read it).
What happened in oral arguments?
The good news is that a number of the Justices asked pointed, even scathing questions that highlighted the fact that gun rights are protected by the Constitution.
Even Chief Justice John Roberts (widely regarded as the weakest link on the Court for gun owners) actually sounded pro-gun with quotes like this:
“[T]he idea that you need a license to exercise the right [to bear arms], I think, is unusual in the context of the Bill of Rights.”
The Biden administration and New York’s legal counsel teamed up to defend New York’s carry regime, doing their level best to spin the Supreme Court into thinking it’s constitutional to arbitrarily deny law-abiding citizens the right to carry firearms.
At one point, Justice Alito caught New York’s legal team distorting history in an attempt to shore up their argument for gun control:
JUSTICE ALITO: Yeah. Well, I’m going to give you an example, which is — you know, it’s troubling. I can see how it would slip through. I’m not accusing you personally of anything.
But, on page 23, you say that in founding-era America, legal reference guides advised local officials to “arrest all such persons as in your sight shall ride or go armed.” And this is a citation to John Haywood, A Manual of the Laws of North Carolina, 1814.
So I looked at this manual, and what it actually says is “you shall arrest all such persons as in your sight shall ride or go armed offensively.” And somehow that word “offensively” got dropped —
MS. UNDERWOOD: Well, our —
JUSTICE ALITO: — from your brief.
MS. UNDERWOOD: I will —
JUSTICE ALITO: Do you think that’s an irrelevant word?
Of course, it’s not an irrelevant word. Justice Alito went on to point out that including the word “offensively” means the founding-era law actually doesn’t support gun control. (Which, presumably, is why the New York legal team left it out.)
At another point, Justice Brett Kavanaugh, speaking of the problems with government officials giving permission to exercise rights, said:
“[T]hat’s just not how we do constitutional rights, where we allow basic blanket discretion to grant or deny something for all sorts of reasons.”
What does this mean for gun rights?
As encouraging as these moments were, they provide very little insight into how the Court will actually rule.
After all, the Supreme Court is known for asking tough questions only to issue a narrow ruling that doesn’t do much for gun rights – in other words, a piecemeal approach to “appease” both sides.
And based on other questions raised by the Justices, some of them seem to be at least considering the possibility of a middle-of-the-road ruling that dodges the real issue – which will almost certainly include glaring loopholes the gun grabbers will seize upon.
There is also the possibility that – despite grilling the gun-grabbers today – Chief Justice Roberts could shock us all with an anti-gun ruling.
This means we still have our work cut out for us.
Even in the best-case scenario – if the court issues an historic pro-gun ruling – state legislatures, D.C. politicians, and gun control groups alike will immediately start trying to get around it – or will even defy it outright, just as they did after the last major pro-gun Supreme Court ruling in 2010.
This means we have to be ready to sue in many more places when the final ruling is handed down, likely in the spring of 2022.
Bottom line? Yesterday was a good day for gun owners at the Supreme Court, but this case and what it means for the Second Amendment is FAR from being decided.
Tomorrow the fight continues. Stay tuned!
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