Big SCOTUS Win for Second Amendment

In District of Columbia v. Heller, 554 U. S. 570 (2008) and its progeny, the Supreme Court established the Second Amendment embodies an individual right–not tied with military service. Law-abiding citizens may possess handguns for the defense of their homes. What about the ability to carry guns outside the home for self-defense? In New York State Rifle & Pistol Ass’n v. Bruen, decided this week, the Court recognized an individual’s right to carry a handgun for self-defense outside the home.

The case centered on a New York law requiring citizens to demonstrate a special need for self-defense to carry a weapon outside the home. To show a special need, one usually must provide evidence of particular threats, attacks, or other extraordinary dangers to personal safety.

In striking the New York law, the Court held that a government restricting gun rights must show that its regulation “is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “‘unqualified command.’” (Slip Op. at 10) The Court rejected any means-end test. With such tests, often so long as the Government can show that its regulation furthers a governmental interest (i.e., public safety) and there is some rational relationship between the regulation and the interest, the regulation is upheld. Such means-end scrutiny is improper “because ‘[t]he very enumeration of the right takes out of the hands of government–even the Third Branch of Government-the power to decide on a case-by-case basis whether the right is really worth insisting upon.’” (Slip Op. at 14)

This is huge. Courts often play games with a means-end test whether the standard is harsh (strict scrutiny) or lenient (rational basis). Judges bend the standards like a child’s toy to achieve desired results. In this case, the Court has taken from the judiciary the ability to play games behind the smokescreen of malleable tests. “The Second Amendment,” according to the majority, “‘is the very product of an interest balancing by the people’ and it ‘surely elevates above all other interests the right of law-abiding, responsible citizens to
use arms’ for self-defense.”

Gun-control proponents tried to save the New York state by arguing for expanding the category of “sensitive places” where historically, restrictions on firearms have been allowed. They tried to define this category so broadly that it would include “all places of public congregation.” Thankfully, the Court’s majority had on hand the Brief for Independent Institute as Amicus Curiae, which offered historical analysis on “sensitive places” and whether where arms carrying could be prohibited consistent with the Second Amendment. (Slip Op. at 21). The majority cited the Independent Institute’s Brief and observed: “Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and generally protected by the New York City Police Department.”

This is a solid win.

William J. Watkins, Jr. is a Research Fellow at the Independent Institute and author of the Independent books, Crossroads for Liberty, Reclaiming the American Revolution, and Patent Trolls.
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