The U.S. Supreme Court has seemed reluctant to take up a major Second Amendment case since 2008, when it established that bearing arms is an individual right, not just one granted to state militias. It has passed up enough opportunities to clarify the Second Amendment that Justice Clarence Thomas opined that the rights involved seemed “disfavored” by the court.
Now, the high court has agreed to hear a new Second Amendment case. New York State Rifle & Pistol Association v. Corlett involves a New York state law requiring those who want a concealed-carry permit to show an “actual and articulable” need to have one.
The court, which now has a conservative majority, may strike down the law. It may rule that such a limitation places an undue burden on the prospective concealed carrier in violation of the Second Amendment. If it does, that could spell an end to the constellation of state and municipal regulations of concealed-carry permits and possibly other gun laws.
New York claims that the right to carry a concealed weapon is not unlimited but has long been subject to regulatory restrictions in the interest of public safety.
The plaintiffs, an organization that was set up to defend New Yorkers’ right to keep and bear arms, urges the justices to strike down New York’s requirement. The “single most important unresolved Second Amendment question,” they said in court papers, is whether individuals have the right to bear arms in self-defense “where confrontations often occur: outside the home.”
Should you have to meet a standard before getting a concealed-carry permit?
The plaintiffs point out that New York’s concealed-carry permit regime requires more than a showing of good, or even impeccable, moral character. It requires more than a desire merely to exercise one’s Second Amendment rights. They claim it requires more than a showing that the petitioner lives or is employed in a high-crime area. They claim they were denied permits even after showing an “actual and articulable” need for the permit.
Ultimately, however, they argue that law-abiding citizens have the right, under the Second Amendment, to carry their guns in public, if concealed.
At the very least, they argue that the law should presume the right of a law-abiding citizen to have a concealed-carry permit rather than presuming there is no right without an “actual and articulable” need.
How will the court make its decision?
Currently, at least 10 of the 12 federal circuits use the same basic approach to Second Amendment cases, according to Vox.
When the burden of a particular regulation is considered severe or burdens “core” Second Amendment rights, these courts apply what is called “strict scrutiny.” This means such restrictions must be narrowly tailored to promote a clear government interest.
Gun regulations that less severely burden the right to bear arms or do not burden the “core” of the Second Amendment receive “intermediate scrutiny.” That means the law can be broader and still be upheld.
It was using this analysis that the Second Circuit upheld New York’s concealed-carry permitting regime, which was established in 1913.
The Supreme Court may or may not follow this consensus approach.
Justice Brett Kavanaugh argued in a 2011 dissent, when he was still with a lower court, that the consensus approach should be abandoned. Justice Amy Coney Barrett, also as a lower court judge, urged greater protection of Second Amendment rights. Furthermore, the Supreme Court has stepped to the right since its 2008 decision recognizing an individual right to bear arms.
If the high court strikes down New York’s concealed-carry law, it may indicate that other restrictions on the right to bear arms are unconstitutional.