Prominent conservatives argue states limit guns in public

WASHINGTON – When the Supreme Court hears a major Second Amendment case on Wednesday, many expect the court’s recently expanded Conserva...


WASHINGTON – When the Supreme Court hears a major Second Amendment case on Wednesday, many expect the court’s recently expanded Conservative majority to be on the verge of overturning the New York law under consideration, a law which imposes strict limits on carrying weapons outside the home.

Corn a brief filed by a group of prominent conservative lawyers and former government officials in Republican administrations complicated this picture. Relying on originalism, the method of interpretation adopted by the conservative legal movement, the memoir argued that “the original understanding of the Second Amendment was that there was no absolute and unfettered right to bear weapons loaded in public “.

J. Michael Luttig, a former Federal Court of Appeal judge revered by the Conservatives, was among the lawyers who filed the case. He said the question was simple.

“When you look at the history and the tradition, spanning six or seven centuries, you can clearly see that the public carrying of firearms has been variously prohibited and regulated throughout time,” he said in a statement. interview. “New York law and the laws of other states which are its equivalent fit very well into the history and tradition of gun regulation.”

Turning to history is a central feature of originalism, the method of interpreting the Constitution that seeks to determine its original public significance.

Other lawyers who signed the brief included Peter D. Keisler, former acting attorney general in the George W. Bush administration; John B. Bellinger III, a senior lawyer in the State Department and the White House under Mr. Bush; and Carter Phillips, a prominent Supreme Court attorney who served in the Justice Department during the Reagan administration.

Paul D. Clement, a former solicitor general in the Bush administration who represents the two men and the gun rights group challenging the New York law, took a different perspective on the relevant story.

“The founding generation understood that the Second Amendment and its English predecessor guaranteed the right to bear common weapons in self-defense,” he wrote in a brief from the Supreme Court.

But many historians agreed with Mr. Luttig and his colleagues.

“The weight of historical evidence is quite clearly on the side that there has always been some sort of regulation of carrying weapons in public,” said Saul Cornell, a Fordham University historian who deposited a brief support New York. “One of the longest continuing traditions of Anglo-American law is the restriction of the public carrying of weapons in populated areas.”

New York law requires people seeking a license to carry a handgun outside their home to show a “good cause.” Two men who were denied the licenses they sought have filed a lawsuit, along with the New York State Rifle & Pistol Association, claiming that “the state makes it virtually impossible for the law-abiding ordinary citizen to obtain a license ”.

California, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island have similar laws, according to briefs filed in the case.

In March, Judge Jay S. Bybee, who was appointed by Mr. Bush, came to the same conclusion as Mr. Luttig in a majority opinion for the United States Court of Appeals for the Ninth Circuit, in San Francisco, which upheld Hawaii law by 7 votes to 4.

“Our review of over 700 years of English and American legal history reveals a strong theme: the government has the power to regulate guns in the public arena,” Judge Bybee wrote.

“English law restricted the possession of public firearms as early as the 13th century,” he writes, culminating in the Statute of Northampton of 1328, which prohibited most people “from going or riding armed at night or from riding. day, in fairs, markets, nor in the presence of judges or other ministers, nor anywhere else, under pain of entrusting their armor to the king.

Some American colonies have adopted this language almost verbatim. “After the ratification of the US Constitution, and subject to their own state constitutions,” Judge Bybee wrote, “states continued to pass laws that restricted the carrying of weapons in public”. North Carolina, for example, adopted a version of the Statute of Northampton in 1792.

Justice Bybee acknowledged that “history is messy,” and gun rights advocates say the 1328 law was only intended to prohibit the carrying of weapons with the intent to terrorize.

The brief submitted by Mr Luttig and his colleagues also took into account recent history. According to the brief, strict gun laws in Washington, DC “undoubtedly saved many lives in the January 6, 2021 insurgency.”

Mr. Luttig, who advised Vice President Mike Pence during this difficult time, said “many protesters did not bring their weapons because they did not want to break the law”.

“It would have been a lot worse,” Luttig said. “More lives would have been lost. There would have been more chaos than there was then.

Jason Ouimet, executive director of the National Rifle Association’s Institute for Law-Making, said gun control laws in Washington were unlike the one challenged in New York.

“While a DC law played a deterrent role, it was not the kind of discretionary licensing regime New York and only a handful of other states have,” he said.

Mr. Clement wrote that his clients’ feud was over New York’s licensing system and that they were not “challenging any of New York’s many separate laws banning handguns in specific and sensitive locations.”

When the Supreme Court revolutionized Second Amendment law in 2008 in District of Columbia v. Heller, establishing an individual right to keep weapons at home for self-defense, the majority turned to history to determine the original meaning of the amendment. There was, Judge Antonin Scalia wrote, many reasons to believe that the amendment protected the right to firearms in the home.

The New Case, New York State Rifle & Pistol Association v. Bruen, # 20-843, presents a different question, and history may provide a different answer.

Not all legal scholars believe that history provides the right framework for deciding whether a given gun regulation is constitutional. Some note, for example, that modern weapons are much more deadly than those available at the time of the foundation.

But the two new members of the tribunal, Judge Brett M. Kavanaugh and Amy Coney Barrett, both wrote that historical practices are crucial in assessing Second Amendment rights, although it is not clear to what extent the history could influence their positions in the New York case.

In a dissent from 2011Written while still a judge on the court of appeal, Justice Kavanaugh said Supreme Court precedents “leave little doubt that courts must assess bans and regulations on handguns. fire on the basis of text, history and tradition, and not by a balancing test, “although he acknowledged that” to analyze the history and tradition of gun laws at United States does not always give easy answers ”.

Justice Amy Coney Barrett, in a dissent 2019 when she served on a federal appeals court, also looked at history to conclude that a law prohibiting those convicted of felony from owning firearms should not apply where the crimes in question were not violent.

“The best historical support for a legislative power to permanently dispossess all criminals would be founding-era laws explicitly imposing – or explicitly authorizing the legislature to impose – such a ban,” she wrote. “But at least so far, researchers have not been able to identify such laws.”

Mr. Clement, the lawyer for the challengers, wrote that the language of the Second Amendment – which speaks of a right to “keep and bear arms” – is on their side. The carrying of weapons, Mr. Clément said, occurs outside the home.

Yet New York law, he writes, “effectively makes it impossible for an ordinary law-abiding citizen to obtain a license to carry a handgun in self-defense.”

In dissent last yearJustice Clarence Thomas, joined by Justice Kavanaugh, agreed that the constitutional text supports the right to bear arms in public. “It would take serious linguistic gymnastics – and a repudiation of this tribunal’s decision in Heller – to claim that the phrase ‘bear arms’ does not extend the Second Amendment beyond the house,” the judge wrote. Thomas.

Lawyers on the other side said that does not end the analysis, as constitutional rights can be subject to regulation.

Mr Clement said local authorities should not have the power to decide who is fit to carry a gun. “The Second Amendment makes the right to bear arms for self-defense the rule, not the exception, and fundamental rights cannot be left to the whim of local officials,” he wrote.

New York’s law was challenged by Robert Nash and Brandon Koch, who were denied permission to carry handguns at any time. They were allowed to carry them for target training and hunting away from populated areas, state officials told the Supreme Court, and Mr Koch was allowed to carry a gun to get to the work and come back.

“Nash and Koch were not given unlimited licenses because neither demonstrated a non-speculative need to carry a handgun virtually anywhere in public,” Barbara D. Underwood, Solicitor General of New York, told the judges.

Joseph Blocher, law professor at Duke who testified a friend of the court brief not supporting either side, said the case could have huge practical consequences.

“About a quarter of the American population lives in a state with a gun law similar to New York,” he said. “If the court overturns this law, it could have a significant impact on the lives of tens of millions of Americans.”

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