Wednesday marks a showdown over guns at the legal O.K. Corral. The Supreme Court hears arguments in its first major gun case in more than a decade, and the new conservative supermajority seems poised to make gun regulation more difficult.
In 2008, the high court ruled for the first time that the Second Amendment right to keep and bear arms grants individuals the right to keep a gun at home for self-defense. But after that, for all practical purposes, the court remained silent on gun rights, even as the years rolled by with more than 1,400 cases filed to challenge existing gun regulations.
Now the time long awaited by gun-rights advocates has come, as the court examines how far a state may go in regulating an individual's right to carry a gun outside the home.
What the case is about
The test case is from New York, which, along with seven other states, has the most restrictive laws in the U.S. when it comes to carrying guns outside the home.
Under New York's "proper cause law," people applying for a license to carry a concealed weapon outside the home must show that they have a concrete need for self-defense, a "proper cause." The licenses are restricted to those going hunting or to target practice and to those who can demonstrate a need for self -protection, such as bank messengers carrying cash or store owners who want to keep a gun in their store for self-protection.
New York does not allow carry permits out of a general desire for self-defense. Instead, the law requires applicants to show that they have a special, particular need to carry a gun.
Challenging the law are the New York State Rifle and Pistol Association, which is an arm of the National Rifle Association, and two men who live in upstate New York. One received a permit to carry a gun to and from work, and both acquired licenses to carry weapons for hunting and shooting practice. But they were both denied the right to carry guns outside the home as a general matter of self-defense.
What each side is saying
Former U.S. Solicitor General Paul Clement, who represents the challengers, will tell the high court Wednesday that the right to carry guns outside the home is like the right to free speech or any other right guaranteed by the Constitution.
"These are all rights that the founding generation thought were sufficiently important that we're going to enshrine them in the Bill of Rights," Clement says. "And I think that judgment means that the states have to respect those rights."
Not so fast, counters Richard Dearing, chief of appeals for New York City.
"I don't think we can forget that we are talking about an instrument that is designed to kill people," he says. The problem that the challengers have, he maintains, is that "the public safety considerations are so tremendous and varied on the side of gun regulation in a way that is not equally true of other rights."
The question of local government regulation
Among the 87 briefs in the case is one filed by a group of Justice Department officials from previous Republican administrations. Among them is J. Michael Luttig, who served for 15 years as a federal appeals court judge, earning a reputation as one of the country's most prominent and conservative judges.
He argues that a thorough examination of the history and tradition of gun regulation in the U.S. shows clearly that the Founders thought that state and local governments should be free to regulate the carrying of guns, concealed or not, in public.
"New York has a less restrictive regulatory regime than even the founding-era statutes, which broadly prohibited public carry with no exception whatsoever," he says.
But Clement counters that there are no records showing prosecutions under those laws, and he maintains that New York's law puts unconstitutional discretion in the hands of state regulators. It's one thing, he says, for a state to bar felons from carrying guns. But it's something else entirely to say that "you have zero criminal record, you have done nothing wrong ... and yet you still can't get any outlet for your constitutional right to carry your firearm outside the house."
Dearing replies that these decisions are not made by petty bureaucrats. They are made in rural upstate New York by judges and in New York City by police department officials. Moreover, he says, the rules in rural areas are looser than they are in New York City, where the population is by far the densest of any place in the country.
Indeed, as he points out, New York City's population of 8 million is crammed into a mere 303 square miles — resulting in a population density of about 27,000 residents per square mile. More than 5.5 million people ride the city's subway daily, and Manhattan's daytime population grows to 4 million on a typical weekday.
"Law-abiding citizens can in an instant become lawless citizens in a moment of passion, a moment of argument, and incidentally, increasingly in political moments of disagreement," adds Luttig. And he focuses in his brief on the statements of many rioters who stormed the Capitol on Jan. 6 who said they left their guns at home because of laws in the District of Columbia that make carrying guns in public illegal.
"Consider ... the exceedingly greater difficulties the police and the national guard would have faced if a substantial number of the January 6, 2021 protesters had been armed with loaded guns," he and other former top Justice Department officials wrote. A broad right to carry, they say, "would throw gasoline on the fires of our nation's future political conflicts."
That's why, as Luttig told NPR, the history and tradition of the Constitution gives the legislatures essentially the whip hand, if you will, in regulating the public carry of guns.
What the conservative court might do
Clement replies that allowing citizens with no criminal record to carry a gun outside the home does not mean that local governments can never ban guns in sensitive places. He notes that there are hundreds of Supreme Court decisions dealing with limits on the First Amendment, for example, and he notes that this is just the first case to explore what limits the Constitution permits on the right to carry guns outside the home.
That said, so far he has not come up with a principle to guide such exceptions to the rule he advocates for of generally allowing people to carry concealed guns in public.
"We don't tell the court what the limiting principles are because I don't think this is the case to develop the scope of the limiting principles," Clement says. "We think this is a pretty extreme law that presumptively says if you're an ordinary citizen, you can't carry a firearm at all for self-defense."
The court majority for more than a decade dealt with the issue of gun rights by steering clear of it. But with then-President Donald Trump's appointment of three new justices, that equation has changed. Justice Neil Gorsuch has weighed in as a strong advocate for gun rights, and if Justices Brett Kavanaugh and Amy Coney Barrett live up to their records as lower court judges, there is now a Supreme Court majority to strongly support gun rights, potentially at the expense of public safety concerns.
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