SCOTUS Decides Landmark Second Amendment Case

Thomas Paine: American Philosopher, & Revolutionary

From 1776 through the formation of The Constitution I helped create America. Now I have returned to help save America. Please join my Facebook group American Patriots in a free and open discussion to further the cause of FREEDOM.

Part 2 of a 3 part series on the 2nd Amendment

The Second Amendment to the Bill of Rights

It was an eventful week down in D.C., and when I say “down” I mean in the sewer that is our nations’ capitol.  The Supreme Court (SCOTUS) ruled on arguably the most important case ever decided on the Second Amendment and unless you were paying attention on Thursday, the 23rd of June, you may have missed it completely with all the hysteria surrounding their ruling in Roe v. Wade the next day.

I consider it my job to research important matters so that hard-working patriots don’t have to.  The information you are about to see is not politically slanted or misrepresented in any way.  I disseminate facts after carefully examining the relevant particulars of the story, making sure I comprehend the true meaning of the text, the source, and the intention of the original report. 

There are “currently” [1] 43 States that are considered “shall issue” jurisdictions, whereby authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability.

Only six States and the District of Columbia have “may issue” licensing laws, under which authorities have discretion to deny concealed-carry licenses even when the applicant satisfies the statutory criteria, usually because the applicant has not demonstrated cause or suitability for the relevant license.  New York is “currently” the most restrictive.  No New York statute defines the term “proper cause”, the standard methodology used by authorities in considering applications, but state courts have held that an applicant shows proper cause “only if he can demonstrate a special need for self-protection distinguishable from that of the general community.”  And the “special need” requirement is a formidable barrier.  Living or working in an area with high criminal activity is not considered dangerous enough to warrant a license.

The other states under “may issue” protocols are California, Hawaii, Maryland, Massachusetts, and New Jersey. 

[1]  I used the word currently in quotation marks because it described the conditions existing at the time of the Supreme Court decision.  My understanding is that the SCOTUS decision renders all such licensing requirements obsolete immediately.  Supreme Court decisions are virtually final.  The only way to reverse a Supreme Court decision is by constitutional amendment or a new ruling by the Supreme Court itself. The likelihood of either is slim.

For those who support the 2nd Amendment the case referenced below is a huge victory against the evil forces that are determined to erode our constitutionally protected rights.  Let’s look at the actual case and some details of the opinion.

NYSRPA v. Bruen,  [2]

Supreme Court of the United States Case No. 20-843 ;

Argued November 3, 2021 – Decided June 23, 2022

Justice Thomas delivered the opinion of the Court

Chief Justice Roberts joined. Justices Alito, Gorsuch, Kavanaugh, and Barrett joined.

Justice Breyer filed a dissenting opinion.  Justices Sotomayor and Kagan joined.

Cite as:597 U. S. ____ (2022)

Opinion of the Court

NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL., PETITIONERS v. KEVIN P. BRUEN, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL.

The petitioners in this case, Brandon Koch and Robert Nash, both members of the New York State Rifle & Pistol Assoc., are New York residents.  Both were denied “unrestricted” licenses to carry handguns for self-defense. 

The respondents in this case are the Superintendent of the New York State Police and a New York State Supreme Court Justice who oversees the processing of license applications in the petitioners’ home county.

Petitioners filed suit for violation of their Second and Fourteenth Amendment rights.  Their case was dismissed in District Court and upheld by the Court of Appeals, sustaining New York’s “proper cause” standard.

[2]  https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf

Highlights From the Opinion:

Because this Supreme Court decision is a public record document, not subject to copyright laws, I have quoted many passages verbatim.

The first paragraph of Justice Thomas’ opinion reads: page 7 (pdf)

   In District of Columbia v. Heller, 554 u. S. 570 (2008), and McDonald v. Chicago, 561 U. S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.  In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense.  We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.

Thomas ends his second paragraph by writing, “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.”

Paine:  It didn’t take long to establish the right of any law-abiding citizen to carry a handgun in public.  Digging deeper into the decision, we can clearly see there are broader freedoms restored to “ordinary” citizens.

“Fortunately, the Founders created a Constitution – and a Second Amendment – intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”

“Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.”

“We have already recognized in Heller at least one way in which the Second Amendment’s historically fixed meaning applies to new circumstances: Its reference to ‘arms’ does not apply ‘only to those arms in existence in the 18th century.”

“Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.  Thus, even though the Second Amendment’s definition of ‘arms’ is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense.”

Paine:  Right there, I’m tempted to say, “that’s good enough for me”.  Not only does this extremely important ruling expand the Second Amendment rights of all law-abiding citizens to carry handguns in public, but it also applies to “modern instruments”, or weapons that are “in common use at the time” for self-defense,

Thomas did acknowledge earlier in his opinion that, “like most rights, the Second Amendment is not unlimited.  From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.  For example, we found it fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’ that the Second Amendment protects the possession and use of weapons that are ‘in common use at the time.’ ”

Paine:  By my interpretation Thomas was referring to out-of-the-ordinary extremely dangerous weapons, such as flame throwers, bazookas, rocket-propelled grenade launchers, 50 caliber machine guns, shoulder-fired missile launchers, and other military grade weapons. 

Most handguns sold these days are semi-automatic weapons.  Arguably, the popular AR-15 and other models are semi-automatic rifles that could be construed as “in common use at the time”.

Restricting weapons for self-defense based on the length of its barrel is neither rational, nor a logical distinction between “common use” and “dangerous and unusual”.

It is my honest assessment that the popular AR-15 is now considered by the Supreme Court to be “in common use at the time”, and therefore protected by the Second Amendment, not only to possess, but to carry in public.

However, it may be advisable to check with local authorities before open-carrying an AR-15 in public in those aforementioned six states and D.C., or any jurisdiction that does not “currently” allow open-carry.

If my assessment turns out to be accurate, this case is the final “death blow” to the gun control advocates seeking a ban on “assault rifles” and high-capacity magazines.  But don’t hold your breath.

To clarify, the Second Amendment’s operative clause – “the right of the people to keep and bear arms shall not be infringed” – guarantees the individual right to possess and carry weapons in case of confrontation. 

“As we stated in Heller and repeated in McDonald, individual self-defense is the central component of the Second Amendment right.”

“The definition of ‘bear’ naturally encompasses public carry.  Most gun owners do not wear a holstered pistol at their hip in their bedroom or while sitting at the dinner table.”

“To confine the right to ‘bear’ arms to the home would nullify half the Second Amendment’s operative protections.  Moreover, confining the right to ‘bear’ arms to the home would make little sense given that self-defense is the central component of the Second Amendment right itself.”

“The Second Amendment’s plain text thus presumptively guarantees petitioners Koch and Nash a right to ‘bear’ arms in public for self-defense.”

That right now applies to every citizen everywhere in the United States.

“Post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text.”

Sensitive Places

The Supreme Court regularly considers historical traditions in deciding cases.  Those previously encountered situations are the first areas examined.  Apparently, historical records include relatively few 18th and 19th century “sensitive places” where weapons were prohibited (legislative assemblies, courthouses, etc.), and SCOTUS found no disputes regarding the lawfulness of weapons prohibitions. The Court acknowledges that “sensitive places” where arms-carrying could be prohibited is consistent with the Second Amendment and  

Constitutionally permissible.  It is understood that firearms may be restricted in such “sensitive places” as schools and government buildings.

However, the “sensitive places” doctrine does not apply to heavily populated areas such as New York City, simply because it is crowded or protected by a large police force.

Concerns of the Respondents

Thomas addressed the arguments presented by the respondents (Bruen and his legal defense) going back into early English law.  With much scrutiny he wrote how firearms carried in public by English citizens in the decades leading up to ratification of the Bill of Rights in 1791, there was no evidence that “the mere public carrying of a handgun would terrify people.  In fact, the opposite seems to have been true.  As time went on, domestic gun culture in England softened any ‘terror’ that firearms might once have conveyed.”

Serjeant William Hawkins, in his widely read 1716 treatise, noted that ‘Persons of Quality’ (law-abiding citizens) were ‘in no danger of offending against this Statute (the Statute of Northampton) by wearing common weapons’ because it would be clear that they had no ‘Intention to commit any Act of Violence or Disturbance of the Peace’.

Paine:  The Statute of Northampton was as act to codify the existing common-law offense of bearing arms to terrorize the people.  It is what could be called over-reach by authorities to reduce crime by penalizing law-abiding citizens who pose no threat to society.  The gun control advocates today are attempting to enact unnecessary legislation that doesn’t address the problem.  In fact, it exacerbates the problem of rampant crime by signaling the criminals that there are no good guys with guns.

Further addressing respondents’, Thomas cited numerous cases among the States in the early 19th century and antebellum periods as part of his extensive consideration in terms of the “historical tradition” principle – concluding that “All told, these antebellum state-court decisions evince a consensus view that States could not altogether prohibit the public carry of ‘arms’ protected by the Second Amendment or state analogues.”

The Closing

Thomas concludes his Opinion by writing, “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 that the other Bill of Rights guarantees.  We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.  That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion.  That is not how the Sixth Amendment works when it comes a defendant’s right to confront the witnesses against him.  And it is not how the Second Amendment works when it comes to public carry for self-defense.

New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.  We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.”

  —  It is so ordered.

Do you need a license to carry handguns and AR-15s ?

I’m not a lawyer and I don’t offer legal advice.  I’m simply expressing my opinions based on known facts and my interpretation of the Constitution.  Anyone who seeks specific guidance in legal matters should consult a competent Attorney. 

NYSRAP v. Bruen absolutely guarantees the right to bear arms in public for any weapon that could be deemed “in common use at the time” for self-defense.  It is my best assessment that this ruling nullifies all requirements to obtain permits or licenses to carry said “covered” (common use) weapons.  Requiring a license to exercise a constitutional right inherently undermines that right as it implies that a license could be denied, or revoked, as if it were a privilege.

That doesn’t mean the gun control advocates are going to give up and seek other ways to restrict that right.  Democrats don’t like to lose.  We have seen how they react to events that don’t go their way, advocating anarchy, inciting riots, demanding reforms to well-established norms.  Expect them to attack from different angles. 

You may be constitutionally protected to open-carry an AR-15 in public, but you could be subjected to intense scrutiny by authorities that might include some unpleasant treatment.  It would be wise to fully understand this Supreme Court case and be able to cite some of the provisions to defend yourself against authoritative harassment.  It’s also advisable to not dress in tactical gear while brandishing an AR-15 and act in any obviously threatening manner.  If you choose to open-carry any weapon in public, do it only while sober, act normal and remain civil.  It’s not a “toughest dude” contest.  Remember, the weapon is for self-defense.  Again, it’s best to check with local authorities.

One Last Thing:  Active Shootings   

The gun control advocates politicize every mass shooting before the crime scene is even processed, tugging on the emotional heartstrings of the weak-minded sheeple to support their gun grabbing agenda.  We all know “Gun Free Zones” don’t work.  We all know strict gun control laws don’t work.  Look at Chicago. 

There are numerous stories of good guys with guns stopping bad guys with guns and minimizing casualties.  That’s why I support the advocates for armed guards in every public school in America.  The best way to save the children is to offer them armed protection.  Lunatics attack soft targets because they know they can inflict massive damage and notoriety.  The only way to stop it is to set up formidable barriers, i.e., armed security.  

If you happen to be “Johnny-on-the-spot” during a violent nearby crime with no police around, you could be faced with a tough decision.  You could be a hero, saving lives, while risking being mistaken for the perpetrator(s).  Personally, I would always choose courage over cowardice, but think about how you would signal first responders that you are a good guy (hands up, don’t shoot).  We all live in a dangerous world.  Be careful out there and always be situationally aware of your surroundings.  

If you decide to carry a weapon, it is always advisable to train with it and know your capabilities.  It’s better to have it and not need it, than need it and not have it, but it won’t do you much good if you can’t access it quickly and prevent an assailant from taking it from you.

Thank you SCOTUS for strengthening 2A.

Be safe.  Be a strong Patriot.  Lock and load. 

COMMENTS ALWAYS WELCOMED

See Part 3 of the series HERE

Return to Part 1

2,937 thoughts on “SCOTUS Decides Landmark Second Amendment Case

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