Briefly Noted: 2A Before The SCOTUS Tomorrow

Tomorrow the SCOTUS will hear oral arguments on New York State Rifle Association v. Bruen. This is a case challenging a New York law that requires an ordinary person who wants to carry a firearm but who doesn’t fit into any special category—such as a gunsmith, a messenger, certain public officials, etc.—to show “proper cause exists for the issuance” of a license. What does “proper cause” mean? It means the State of New York doesn’t want to issue you any such license if you don’t have connections.

A similar case with the same plaintiff, the NYSRA, came before the SCOTUS two years ago. That was a challenge to unreasonable restrictions on the ability of gunowners to transport their firearms, which had been upheld by the Second Circuit Court of Appeals. When the SCOTUS accepted the case, New York pulled a switcheroo to prevent the SCOTUS from considering the law in question—probably fearing a broad ruling on its many unreasonable restrictions and suspecting that the SCOTUS would not uphold the Second Circuit. New York quickly changed the law, and the SCOTUS decided that the case was “moot”. However, four justices—Alito, Thomas, Gorsuch, and Brett—expressed considerable displeasure at this tactic. Now with Amy on the bench, that’s a pretty strong pro-2A lineup.

Jonathan Turley has been following this case closely, because he expects it to be a significant ruling that will strengthen protections for the 2A rights of ordinary citizens—the people mentioned in the Second Amendment itself:

The Supreme Showdown: Bruen Has The Makings of a Major Second Amendment Victory

Turley usually counsels caution when it comes to predicting outcomes of cases that make it to the SCOTUS. However, the State of New York surely had a shrewd idea that they wouldn’t have liked the outcome two years ago, and so Turley expects New York will like the outcome this time around even less:

The showdown with New York and the Second Circuit in that sense was merely delayed, but not forgotten by the Court. Ironically, the earlier law would have presented a narrower platform for reconsidering the Second Amendment. By gaming the system a year ago, New York may have delivered a far greater opportunity for Second Amendment advocates in the case.

Of course, the Court could have accepted the case to simply amplify its agreement with the Second Circuit, but I would not count on it.

And so Turley is willing to go out on a limb in this case. Lower courts have been trying end runs on the earlier 2A cases (Heller, MacDonald), so the time seems ripe for just the sort of case that Bruen presents:

With lower courts chipping away at its prior precedent, the Court seems poised to push back with a case that brings greater clarity and support for the right to bear guns in public. Many Second Amendment advocates are encouraging the Court to pull back on language from Heller that has been cited mantra-like by lower courts limiting the scope of this right. Many point to the court’s statement in Heller, which acknowledged that “like most rights, the right secured by the Second Amendment is not unlimited.” It then listed possible “sensitive places” for denying permits to former felons.

The Court is likely to continue to recognize reasonable limitations, including possibly some location-based limits. However, it may create a clear presumption in favor of law-bidding [sic = abiding] citizens to bear arms outside of the home. The natural default under the Second Amendment in favor of gun owners is likely to be strengthened.

This is happening at an interesting time. The tactic of the Left is clear. They’re attempting to re-categorize 2A issues as a “public health” problem. The idea seems clear: If the keeping and bearing of arms is a “public health” issue, then public officials can deal with gun ownership just as they’ve dealt with the right of assembly under the Covid Regime—by decree or executive fiat.