Locked and Loaded: Supreme Court is Ready for a Showdown on the Second Amendment

Below is my column in the Hill on the makings of a blockbuster case in New York State Rifle & Pistol Association Inc. v. Bruen, the first major gun rights case before the Supreme Court in ten years.  Justices have been openly discussing a case to push back on lower courts that have been chipping away at its Second Amendment jurisprudence. They found that case with a strikingly familiar plaintiff.

Here is the column:

In the movie “True Grit,” federal marshal Rooster Cogburn is asked if the gun that he brandished at a crime scene was loaded. Cogburn, played by John Wayne, dryly responds, A gun that’s unloaded and cocked ain’t good for nothing.” Something similar might be said of a Supreme Court docket, particularly when there is a Second Amendment case that could prove one of the most impactful decisions of the term.

The court will soon take up New York State Rifle & Pistol Association Inc. v. Bruen, more than a decade after its last major gun rights decision. The case promises to be a showdown between the Supreme Court and lower courts, which have been chipping away at the high court’s prior Second Amendment rulings.

In 2008, the Supreme Court handed down a landmark ruling in District of Columbia v. Heller, recognizing the Second Amendment as encompassing an individual right to bear arms. Two years after Heller, in McDonald v. City of Chicago, the court ruled that this right applied against the states.

The new case concerns concealed-carry restrictions under N.Y. Penal Law § 400.00(2)(f) that require a showing of “proper cause.” Lower courts have upheld the New York law, but there are ample constitutional concerns over its vague standard, such as showing that you are “of good moral character.” The case presents a single short, direct question — whether New York’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.

The high court has been carefully waiting for just the right case to address states and cities that have sought to limit gun rights. Indeed, just this week, the court turned down a challenge of a Wisconsin law imposing a lifetime ban on gun ownership for former felons, including cases involving nonviolent crimes. That and other cases seemed tailor-made for Justice Amy Coney Barrett, who wrote a strong defense of the Second Amendment in a similar case as an appellate judge.

It often is difficult to determine which side of the court supplied the votes to grant review in a case. That is not the situation here. The New York case was clearly accepted by conservative justices with a mind toward reversal of the U.S. Court of Appeals for the 2nd Circuit.

The selection of a New York case is particularly poignant. Some of the justices were none too pleased with the Big Apple last year when city officials suddenly sought to withdraw a case on the court’s docket. New York politicians had passed a law that many of us viewed as unconstitutional, with its imposition of burdensome limits on the transportation of lawful guns from homes. Those politicians publicly thumped their chests about going to the Supreme Court with the law and limiting the Second Amendment precedent; professing absolute confidence, they litigated the law, and, again, the 2nd Circuit supported the dubious statute. The Supreme Court accepted the case for review and was expected to overturn the law — until New York suddenly changed the law and then quietly sought to withdraw its case before any ruling.

The court ultimately dismissed the case but did so over the objections of three dissenting justices. It was a rare instance in which the court resisted such a mootness ruling after a party sought to withdraw — but, then, few litigants have had the temerity to do what New York did. Justices Samuel AlitoNeil Gorsuch and Clarence Thomas specifically called out New York for “manipulating” the docket by withdrawing an unconstitutional law just before a final opinion. Justice Brett Kavanaugh joined in the condemnation and added menacingly that “some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”

The court then did precisely that, by accepting a case with the very same plaintiffs: New York State Rifle & Pistol Association. On this occasion, however, the court is unlikely to tolerate another bait-and-switch by state officials trying to withdraw the case at the last minute.

If those four justices are still intent on pushing back on lower courts, they need only Chief Justice John Roberts or Barrett to hand down a major ruling in favor of gun rights.

The briefs filed in the case include groups such the Cato Institute, which directly confronted the court about it being legally absent without leave on gun rights for more than a decade. Cato has argued that judicial “inaction has contributed to the Second Amendment’s demise. It’s no secret that many federal courts have engaged in systematic resistance to Heller and McDonald.”

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. Lower courts limiting gun rights have repeated those lines like a mantra, and the high court appears poised to bring clarity to that ambiguity.

Bruen has many of the same elements as Heller, including a rich historical discussion of what gun ownership has meant through history. Notably, English subjects in the American colonies were the first to receive written guarantees of the right to bear arms for self-defense; settlers of the Virginia colony in 1607 and the New England colony in 1620 were subjects under royal charters recognizing that right. In England, the right to bear arms was formally declared in the 1689 Declaration of Rights that stated that the right to arms was among the subjects’ “true, ancient and indubitable rights.”

That history will weigh heavily in the court defining the right of people to carry weapons in self-defense outside of the home. In many ways, Bruen is the shot not taken last year in New York State Rifle & Pistol Association Inc. v. City of New York. Now the same plaintiffs are back, and New York has supplied another perfect case for the expansion of gun rights. So if you are wondering if Bruen is loaded, at least four justices are likely to agree that a Second Amendment case “that’s unloaded and cocked ain’t good for nothing.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

40 thoughts on “Locked and Loaded: Supreme Court is Ready for a Showdown on the Second Amendment”

  1. As the court indicated in DC v Heller, there is no right to carry concealed firearms. As for allowing for the licensing of a fundamental right, a state can issue a Certificate of Competence if a state has a compelling interest for the public safety. Last I heard, licenses/license taxes, are placed upon privileges that are granted by the government. A fundamental right isn’t a granted privilege.

    DC v. Heller, 554 U.S. 570 (2008)

    Quoting Justice Scalia:

    “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333.

    For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. ”

    “Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down.

    In Nunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251. ”

    “In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right:”

    “Robertson v Baldwin 165 U.S. 275 (1897) ” …..the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons..”

    1. DLaRue:

      Your quote from Heller does not say concealed weapon carrying is an absolute violation of the Second Amendment. Is it the reason why you said there is no right to conceal carry? Some manner and purpose for carrying are permissible.

      “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333.

    2. “As the court indicated in DC v Heller, there is no right to carry concealed firearms.”

      – DLaRue
      ________

      “…SHALL NOT BE INFRINGED…”

      Please provide a citation wherein courts are provided power to amend the Constitution.

      That a citizen or court does not like a law, does not modify or nullify it.

      The People, through elected representatives, are the Sovereign; government (i.e. courts) is the Subject of the Sovereign.

      The 2nd Amendment is not qualified by the Constitution and is, therefore, absolute.

      The “court” should have been impeached, convicted and penalized, commensurate with defection and treason and with extreme prejudice, for egregious dereliction, and abuse and usurpation of power.

      The judicial branch has no power to legislate, modify legislation or modify legislation through “interpretation.”

      That it is impolite to present a firearm in public is a matter of etiquette, not law.

      40K deaths occur on roadways each year; it is not illegal or even impolite to drive.

      Prevarication is an industry; you are a capable purveyor.
      _____________________________________________

      “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

      “…men…do…what their powers do not authorize, [and] what they forbid.”

      “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

      – Alexander Hamilton

  2. Warren Burger, Chief Justice of the Supreme Supreme Court and a life long conservative said: The gun lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat fraud, on the Marxian People by special interest groups that I have seen in my life time. The real purpose of the Second Amendment was to ensure that state armies—the militias— would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any weapon he or she desires. Jan. 14, 1990, “Parade” magazine interview. https://www.theintell.com/story/opinion/2021/06/10/lte-trust-warren-burger-not-matt-gaetz-our-founding-principles/7583570002/

    It wasn’t until 2008 that the gun lobby’s darling Anton Scalia decided to amend the Second Amendment that reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” With his pen he simply removed the bit about the well regulated militia and left only the following: “the right of the people to keep and bear Arms, shall not be infringed.” Scalia decided he had the power amend the Constitution all on his own and he did it and all the strutting originalists let him do it. Such a band of hypocrites.

    1. In the 17th century vernacular of our founding Fathers, a “well regulated militia” simply meant that the citizens be efficient in the use of armaments for the purpose of throwing down the occasional tyrants.

      They also said something about”absolute despotism” which I beywe are witnessing today…

    2. Why does that sentence have the phrase “the right of the people” in it at all? Seems as if that sentence only pertained to militias, that phrase is completely superfluous. Haha, nevermind, we both know the answer.

      Regardless the idea that a free person cannot carry a firearm is insane. Sorry if your need to nanny everyone is offended by the fact that I carry a gun.

    3. “The real purpose of the Second Amendment was to ensure that state armies—the militias— would be maintained for the defense of the state.”

      That is a fundamental misinterpretation of 2A, and an egregious misrepresentation of the very purpose of the Bill of Rights. The Bill of Rights (including 2A) is a (partial) list of *individual* rights, and a stress on the fact that government cannot abridge them. The BoR is not a grant of government power. It is a limit on government power.

  3. Here’s hoping the Court does what it’s supposed to do and actually decides something of importance. They bailed on the election anomalies using the great cop-out — standing. Call out the Army, surround the courthouse and let the justices explain we’re not Moscow on the Potomac just yet. In fact, unlike the peasants in Venzulea and Russia and Europe, we’re AAA – autonomous, angry and armed. That’s a scenario that makes most leftist yearn for the brownest of trousers. You wanna a revolution? As the Beatles said:

    You say you’ll change the constitution
    Well, you know
    We’d all love to change your head
    You tell me it’s the institution
    Well, you know
    You better free your mind instead
    But if you go carrying pictures of Chairman Mao
    You ain’t going to make it with anyone anyhow
    (Pete Buttigieg excepted)

  4. OT

    Is it a crime to contract a cold or the flu?

    The 4th Amendment provides a right to privacy of a person, his papers, etc., which exists in the absence of “probable cause.”

    An American has a right to privacy of his person, including his receipt of healthcare, until probable cause of his illegal contraction of an illegal cold or the illegal flu is presented, right?
    _______________________________________________________________________________________________________________________________________________

    If masks work, why don’t masks work?

    If vaccinations work, why don’t vaccinations work?

    If communism is good, why isn’t communism good?

  5. My thoughts are along the lines, that at the age of Majority, (18) you have the right to purchase and carry firearms, as well as enter into contracts, vote, and join the armed forces.
    Law abiding citizens are not the issue.

    1. Presumably the Founders established an age of majority. Voters must have been 21 in 1789. In an existential battle, presumably, it’s all hands on deck.

      “In the summer of 1776, Joseph Plumb Martin enlisted in the Connecticut state militia at the tender age of 15; he later joined the Continental Army of General George Washington and served nearly seven years on behalf of the Revolutionary cause.”

      – History.com

      1. The Founders left the question as to the qualifications to vote in elections to the State Legislatures. The only age limits they placed were on Representatives, Senators, and the President/Vice President.

  6. The Second Amendment gives us the right to arm bears to increase our militias. Polar bears and Black Bears. Brown bears too.

  7. ABSOLUTE

    The 2nd Amendment is not qualified by the Constitution and is, therefore, absolute. Any judge or Justice who rules in any fashion against, and in contrast and opposition to, the “manifest tenor” of the 2nd Amendment must be summarily impeached, convicted and penalized with extreme prejudice and to the maximum degree, as in the case of defection and treason.

    That any American, including any Justice of the Supreme Court, does not like the 2nd Amendment, does not diminish, in any aspect or facet, the fullest measure of legitimacy, validity, legality, weight and force of the 2nd Amendment. The sole charge and duty of the judicial branch is to assure that actions comport with statute and fundamental law; its duty is nothing more and nothing less.

    The Constitution provides no power or legitimacy to so-called “precedent” or to the purveyors of such, who act in insubordination, subversion, rebellion, insurrection and sedition to the U.S. Constitution and the American thesis. The judicial branch has no authority to amend or modify the Constitution, or to modify the Constitution through “interpretation.”

    Under the American system of self-governance, the People are the Sovereign and the People make the law through elected officials. Government, including the judicial branch, is the Subject of the Sovereign. The judicial branch does not rule over the People. The People, through elected representatives, rule over the judicial branch.

    A well regulated Militia is necessary for the security of a free State; a well regulated militia must be ready to act as “…a body of citizens organized for military service…” to secure freedom in this American free State, which cannot be done without arms sufficient to oppose the arms of an antithetical, rogue government.

    “…THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED….”
    _________________________________________________________________________

    2nd Amendment

    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

    1. There is an exception to the “absoluteness” you find in the 2nd Amendment – in the 5th Amendment.

      “… nor be deprived of life, liberty, or property, without due process of law; …”

      A person may individually be deprived of any Constitutional Right upon conviction of “a capital, or otherwise infamous crime” – basically, a felony.

    1. According to Pelosi, we’ve had to make another difficult decision about China’s human rights abuses.

      We’ve always felt connected to China, but with their military aggression in the South China Sea, with their continuation of genocide with the Uyghurs in Xinjiang province there, with their violation of the cultural, linguistic, religious priority of Tibet, with their suppression of democracy in Hong Kong and other parts of China, as well,” Pelosi said. “They’re just getting worse in terms of suppression and freedom of speech. So, human rights, security, economically…Having said all of that … we have to work together on climate. Climate is an overriding issue and China is the leading emitter in the world. U.S., too, developed world, too. But we must work together,” Pelosi said. “We have to have a level of communication on whether it’s COVID, whether it’s terrorism, or whether it’s climate. We still have to have some communication and dialogue with China on that. But the situation in China is tightening, it’s getting worse.”

      And China didn’t seem to get the Climate Change memo:

      The United Nations Climate Change Conference is due to start on Oct. 31 in Glasgow, Scotland — a city built by the coal and steel industries.

      Alok Sharma, the president-designate for the conference, was in Paris last Tuesday solemnly declaring that “Responsibility rests with each and every country … because on climate, the world will succeed, or fail as one.” Continuing the theme, one of the conference logos observes “The Climate Has No Borders” — which is great, so far as it goes, but someone forgot to tell China.

      It’s Charlie Brown, Lucy, and the football for the dozenth time, with environmental activists and climate bureaucrats playing the part of Charlie Brown; China, a genocide-committing, nuclear-armed Lucy; and the football, China’s promised phasing out of coal.

      Now, just two weeks before the climate summit to end all climate summits, China threatens to ruin the whole show. A headline in the left-wing The Guardian says it all: “China’s plan to build more coal-fired plants deals blow to UK’s Cop26 ambitions.” It’s almost as if these grand conferences don’t do a thing — except generate speeches, emissions, and promises to be broken later.
      https://thefederalist.com/2021/10/18/while-western-nations-kill-energy-china-builds-coal-plants-by-the-dozen/

      1. “It’s almost as if these grand conferences don’t do a thing — except generate speeches, emissions, and promises to be broken later.”

        +++

        We should send Greta to China.

        She will set them straight.

        1. China is suffering from deep psychosis, with a side order of malevolence.

          China said the West was terrible.

          The West then gifted China most of its wealth (was that evil?).

          Now China endeavors mightily to develop bombs to blow up the West.

          Communism is insanity.

      2. China has also instituted selective-child, one-child, delegated, policy, following Pelosi’s religious beliefs. Roe, Roe, Roe your baby…

      3. China doesn’t subscribe to the West’s sincerely held climatalogy, or believe that an effect characterized in isolation, has a significant effect in the wild, let alone a fraction of a fraction contribution forces a progressive outcome. Then there is the unanswered question if atmospheric CO2 is a leading or lagging indicator of temperature change.

        They have already made their secular sacrifices with the Great Leap and one-child, and NOW selective-child (planned parenthood) or one-child, delegated. They would be crazy to follow the West’s Green Leap when the consequences will be more than just Planned Peasant/hood.

    2. APB!

      Be on the lookout.

      Darren’s gonna say Kerry couldn’t KETCH UP with Biden in 2020 so he took State.

  8. Old school Democrats: at this point, if you are voting for the left, you are voting against the Constitution, period. Your old party is dead. The one of JFK. The one of civil rights. Etcetera. Not dead as in an idea, it is dead as in unless you are skilled in necromancy, forget it. The new Democratic party only has ideas in common with the worst fascist regimes we have ever seen on this planet, and that goes back centuries. If you are still voting dem in America in the 21st century, you have have pretty much announced yourself as a proponent of regression and absolute State control. It continues to boggle my mind that a scholar such as Professor Turley still insists there is something or redeemable, or Constitutional, or even law abiding about the modern dem party. Even ten years ago this would have been an absurd observation. Obama was the ‘Great Satan’, and not anybody else. These are the warning signs people got before the holocaust of WWII. Are we really going to be this obtuse? Try stopping being an elite scholar for a moment and think of yourselves as common, human beings; I know that as a privileged leftist, that’s tough, but unless you want to live in a collapsed society, you’d better start. Your wealth and privilege will not insulate you forever, and if it comes down to hunting rabbits for food, I’m not sharing with you lot. You see: in real life survival situations, when your money can’t buy anything anymore, you are pretty much useless.

  9. Below, is a email I sent to NYS Solicitor General:

    “I read the brief you filed on September 14, and it appears to be a brief conceding the Court will rule against NYS. I could not find anything on which the liberal members of the court could latch on to.

    The brief repeats ad nauseum that NYS has an interest in limiting where citizens may carry concealed weapons, and that is somehow a license for NYS to deny unrestricted carry. But guess what? Some 43 states are shall-issue, constitutional carry or a combination of both, and each of those states manages to lists venues where citizens may not carry a weapon, even with a permit.

    The underlined statement below, from your brief, is so stunningly disingenuous that it will elicit laughter.

    “Accepting petitioners’ arguments would break with
    seven centuries of history and have devasting conse-
    quences for public safety. It would not simply invalidate
    longstanding “proper cause” laws like New York’s. It
    would also jeopardize the firearm restrictions that all
    States and the federal government have adopted to
    protect the public in sensitive places where people typi-
    cally congregate—settings like courthouses, airports,
    subways, sports arenas, bars, gaming facilities, houses
    of worship, and schools.
    The state should seriously consider withdrawing its brief and becoming a shall-issue jurisdiction, just like DC, when it was facing a possible adverse court ruling. Yes, save the state from embarrassment before the high court.”

  10. Lefties want to limit our access to guns in the name of safety.

    Ironical given Lefties’ strong desire to kill their children.

    Statistically, any child is at greater risk from his mother than he will ever be from a gun.

        1. One third of those sacrificed lives are Black Babies. Democrats cant quit enslaving Blacks to their welfare plantation

          1. The founder of organizations sets the organizational culture for decades. Planned Parenthood was founded by Margaret Sanger. Sanger stated, “The only good black baby is an aborted black baby.”

            Planned Parenthood is at least as racist as Margaret Sanger was.

        1. Once the longbow with bodkin heads on an arrow almost a yard long was the leveler. A yeoman could take down a knight and many did at Crecy, Potiers, and Angicourt.

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