On New
York State Rifle and Pistol Association v. Corlett
April
26, 2021
We learned today
that the United States Supreme Court has accepted review of a case out of New
York state that raises an important issue under the Second Amendment to the
United States Constitution. That case comes before the court that ruled in District
of Columbia v. Heller, 554 U.S. 570 (2008), that the Second Amendment
creates a right for private citizens to possess firearms in the home for self-defense.
The case the Court has now accepted for review, New York State Rifle and Pistol
Association v. Corlett, raises the issue of whether the Second Amendment
creates a right of private citizens to carry a concealed weapon outside the
home without regulation by the state or at least with less regulation than New
York now imposes.
The Second
Amendment 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.” In the Heller case the Supreme Court in effect read the
first clause of the Amendment out of it and held, in effect, that only the
second clause of the Amendment, “the right of the people to keep and bear Arms,
shall not be infringed,” has legal effect. That language raises two legal
issues. First, just what is the right of the people to keep and bear arms? What
are the terms of that right? What actions, if any, relating to citizens keeping
and bearing arms are beyond the scope of the right? Second, what does “infringed”
mean in this context?
The answer to the
first question is that Heller held that the right the Second Amendment
creates extends at least as far as permitting a private person unconnected with
a well regulated militia to keep and bear arms. On its face the Second
Amendment quite clearly asserts that the people have that right only as they
are part of such a militia. Unfortunately the Heller case ignores that
language of the Amendment and creates a private, personal right to bear arms at
least in the home for purposes of self-defense. Heller thus defines that
private right to keep and bear arms that it creates as extending at least to
that extent.
Second, what does
it mean when the Second Amendment says the right in question shall not be “infringed?”
One online dictionary defines “infringed” to mean “act so as to limit or undermine
(something); encroach on.”[1]
Another online definition of infringed reads “to encroach on in a way that
violates law or the rights of another.”[2]
Under the first definition here it could appear that the Second Amendment
prohibits the state from doing anything that limits or regulates the right of a
citizen to keep and bear arms. Under the second definition the issue would be
whether state action has encroached on that right in violation of some law,
here presumably the Constitution itself. The Court in the present case will
have to decide whether or not New York’s regulation “infringes” the Second
Amendment right in an impermissible way.
In the current
case the Court has various options before it. It could just allow the New York
regulation to stand. It could in theory revisit the Heller decision,
overrule that case, and hold that the Second Amendment right to keep and bear
arms applies only in relationship to a well regulated militia. Given the
conservative nature of the Court it is a virtual certainty that the Court will
not do that. It could strike down the entire regulation as violating the Second
Amendment. It could let New York’s right to require a permit to carry a
concealed weapon but strike down the requirement of a particular showing of
need in order to get the required permit. If the Court does not simply allow
that New York regulation to stand as it is, the issue in the case becomes whether or not the New York state
regulation at issue “infringes” on the right the Heller court created. Does
that regulation limit or undermine the Second Amendment right? Does it “encroach”
on that right in a way that violates the law?
The Supreme Court
will decide this case against the background of a long-established legal rule
that no constitutional right is absolute. The classical expression of this
legal rule is that you cannot yell “Fire!” in a crowded theater when there is
no fire. Why not? Because the risk of panic and resulting injury from your false
and unnecessary shout outweighs your right of free speech. The U.S.
Constitution also creates a right of free exercise of religion. In a real case,
Reynolds v. U.S. 98 U.S 145 (1879), the court held that the claim by the
Church of Jesus Christ of Latter Day Saints that its religion permits and even
requires the practice of polygamy did not stop the state from prohibiting
polygamy. Why not? Because the state has a compelling interest in regulating
the legal relationship of marriage that outweighs the church’s right to
practice its religion. Courts must often weight conflicting, important rights
and interests in cases involving constitutional rights.
The New York State Rifle and Pistol Association case that the Supreme Court has accepted for
review raises the competing interests of Second Amendment rights on the one
hand and the state’s compelling interest in protecting public safety on the
other. Of course the case has not yet been briefed at the Supreme Court level,
so we cannot know just how the state of New York will defend its regulation.
The issue appears to be whether an unregulated right to bear concealed firearms
in public creates a danger to public safety that outweighs the individual right
to keep and bear arms that the Supreme Court has ruled the Second Amendment
creates. Personally I would feel safer if no one were permitted to carry
concealed or unconcealed weapons in public, but the Supreme Court is unlikely
to issue such a sweeping limitation on Second Amendment rights.
Still, there is
no way to know how the Supreme Court will decide this case. The conservative
nature of today’s Supreme Court leads me to believe that the Court will strike
down all or part of New York’s concealed weapons regulation as violating the
Second Amendment. I certainly hope that the Supreme Court will do neither of
those things but will uphold New York’s regulation as not violating the Second
Amendment. I believe that the Court striking down any part of New York’s
regulation would make the people of New York less safe than they are now, a
reality that I fear will not lead the Court to uphold the regulation in question.
All we can do is wait to see what the Court decides and hope that its decision
is not too disastrous for the people of this country.
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