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June 23, 2022

In 6-3 Opinion, Supreme Court Strikes Down "Proper Cause" Requirement For Gun Licensing in New York and Five Other States

They ruled that there is no other core constitutional right for which it is necessary to apply for special permission from a judge before exercising.

Thomas delivered the opinion for the court.

The constitutional right to bear arms in public for self defense is not "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees." We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant's right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self defense. New York's proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.


The Supreme Court addresses here New York State's "proper cause" standard for the issuance of unrestricted gun licenses. Citizens were required not just to show the sort of standard things to get a license -- no history of mental disorders, no criminal record, etc. -- but to then show to a judge a special individual need for a gun for self-defense.

A license applicant who wants to possess a firearm at home (or in his place of business) must convince a "licensing officer"--usually a judge or law enforcement officer--that, among other things, he is of good moral character, has no history of crime or mental illness, and that "no good cause exists for the denial of the license." If he wants to carry a firearm outside his home or place of business for self-defense, the applicant must obtain an unrestricted license to "have and carry" a concealed "pistol or revolver." §400.00(2)(f ).

To secure that license, the applicant must prove that "proper cause exists" to issue it. If an applicant cannot make that showing, he can receive only a "restricted" license for public carry, which allows him to carry a firearm for a limited purpose, such as hunting, target shooting, or employment.


No New York statute defines "proper cause." But New York courts have held that an applicant shows proper cause only if he can "demonstrate a special need for self-protection distinguishable from that of the general community." Rather, New York
courts generally require evidence "of particular threats, attacks or other extraordinary danger to personal safety."


The Court analyzes all other rights and finds that in cases where the government seeks to abridge citizen rights, it is the government which has the duty to prove that they have the right to abridge the right. It is not the citizen's duty to prove they have a special need to exercise the right, as is the case in "proper cause" license schemes.

The Supreme Court noted that the Courts of Appeals had developed a "two-step process" for supposedly applying the Court's Heller ruling which -- they don't say this explicitly -- was really a way to subvert it.

The two steps consisted of first identifying if the behavior being regulated by law was part of the historical Constitution right to bear arms. If it definitely was, then it couldn't be regulated. If it definitely was not, it could be regulated, and there was no need to proceed to step two. If it was unclear if the behavior being regulated was or was not part of the historic right to bear arms, the courts would then proceed to step two, which was a "means-ends" test which asked if the regulation was a well-constructed means to a noble end.

Courts were incentivized by this scheme to find a lot of constitutionally-protected bearing-arms activities to be located in the "gray zone" where they could then apply their invented "means-end" test, and discover -- surprise! -- that a gun control law did in fact satisfy their test.

The Supreme Court rejects this. A bit snarkily.

Since Heller and McDonald, the two-step test that Courts of Appeals have developed to assess Second Amendment claims proceeds as follows. At the first step, the government may justify its regulation by "establish[ing] that the challenged law regulates activity falling outside the scope of the right as originally understood."

The Courts of Appeals then ascertain the original scope of the right based on its historical meaning. If the government can prove that the regulated conduct falls beyond the Amendment's original scope, "then the
analysis can stop there; the regulated activity is categorically unprotected." But if
the historical evidence at this step is "inconclusive or suggests that the regulated activity is not categorically unprotected," the courts generally proceed to step two.

At the second step, courts often analyze "how close the law comes to the core of the Second Amendment right and the severity of the law's burden on that right." Ibid. (internal quotation marks omitted). The Courts of Appeals generally maintain "that the core Second Amendment right is limited to self-defense in the home." If a "core" Second Amendment right is burdened, courts apply "strict scrutiny" and ask whether the Government can prove that the law is "narrowly tailored to achieve a compelling governmental interest." Otherwise, they apply intermediate scrutiny and consider whether the Government can show that the regulation is "substantially related to the achievement of an important governmental interest." Both respondents and the United States largely agree with this consensus, arguing that intermediate scrutiny is appropriate when text and history are unclear in attempting to delineate the scope of the right.

Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment's text, as informed by history.
But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.

...

Moreover, Heller and McDonald expressly rejected the application of any "judge-empowering 'interest-balancing inquiry' that 'asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to
the statute's salutary effects upon other important governmental interests.'"

We declined to engage in means-end scrutiny 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."

We then concluded: "A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all."

The Court also notes that the dissent in Heller argued for an intermediate scrutiny standard -- a means-end test -- which the Court rejected. But which lawless, rebellious Courts of Appeals have backdoored into Heller anyway, effectively making the dissent the ruling opinion.

This Court now affirms: No, the ruling opinion of Heller is ruling.


Will Chamberlain
@willchamberlain

Never forget that if the Never Trumpers had their way, we'd be staring at a 6-3 liberal court, Heller would have been overturned, and the 2nd Amendment would be a dead letter

Posted by: redridinghood







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