{"id":1527523,"date":"2022-06-24T08:06:44","date_gmt":"2022-06-24T12:06:44","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1527523"},"modified":"2022-06-24T08:06:55","modified_gmt":"2022-06-24T12:06:55","slug":"6-takeaways-from-the-supreme-court-decision-protecting-americans-right-to-self-defense","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/6-takeaways-from-the-supreme-court-decision-protecting-americans-right-to-self-defense\/","title":{"rendered":"6 Takeaways From The Supreme Court Decision Protecting Americans\u2019 Right To Self-Defense"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"float:left\"><div class=\"counts mashsbcount\">24<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2F6-takeaways-from-the-supreme-court-decision-protecting-americans-right-to-self-defense%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1527523&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><div><img decoding=\"async\" src=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-content\/uploads\/2022\/06\/4583080594_016e24eb8a_k.jpg\" class=\"ff-og-image-inserted\" alt=\"image\" \/><\/div>\n<p>Yesterday, in a 6-3 decision, the U.S. Supreme Court <a href=\"https:\/\/www.supremecourt.gov\/opinions\/21pdf\/20-843_7j80.pdf\">held<\/a> in\u00a0<em>New York State Rifle and Pistol Association, Inc. v. Bruen<\/em> that \u201cmay issue\u201d gun licensing that allows state officials to deny law-abiding citizens a right to possess a gun for self-defense violate the Second Amendment.<\/p>\n<p>The holding came in the context of a challenge to a New York statute that prohibited individuals from carrying concealed handguns unless they \u201cdemonstrate[d] a special need for self-protection distinguishable from that of the general community.\u201d<\/p>\n<p>Beyond that holding, the Supreme Court opinion authorized by Justice Clarence Thomas proves significant for six reasons. Here are the key takeaways.<\/p>\n<h2>1. May-Issue Gun Licensing Regimes Violate the Second Amendment<\/h2>\n<p>In <em>New York State Rifle and Pistol Association, Inc. v. Bruen<\/em>, two New Yorkers, Brandon Koch and Robert Nash, along with the New York State Rifle and Pistol Association, Inc., sued the superintendent of New York State Police. They challenged the state\u2019s statute that requires a person wishing to carry a firearm outside his home or business for self-defense to obtain a license to carry a concealed weapon. Under the statute, to obtain such a license, the applicant must prove \u201cproper cause exists\u201d for the government to issue the license.<\/p>\n<p>As the Supreme Court summarized, New York\u2019s statute does not define \u201cproper cause,\u201d but state courts have held \u201cthat an applicant shows proper cause only if he can \u2018demonstrate a special need for self-protection distinguishable from that of the general community.\u2019\u201d Merely \u201cliving or working in an area \u2018noted for criminal activity\u2019 does not suffice.\u201d Rather, New York courts generally require evidence \u201cof particular threats, attacks or other extraordinary danger to personal safety.\u201d<\/p>\n<p>This licensing scheme, as the Supreme Court explained, is called a \u201cmay issue\u201d licensing law, because it provides government officials \u201cdiscretion to deny concealed-carry licenses even when the applicant satisfies the statutory criteria, usually because the applicant has not demonstrated cause or suitability for the relevant license.\u201d<\/p>\n<p>Six jurisdictions have adopted \u201cmay issue\u201d schemes in addition to New York: California, the District of Columbia, Hawaii, Maryland, Massachusetts, and New Jersey. In contrast, as the Supreme Court explained, \u201cthe vast majority of States\u201443 by our count\u2014are \u2018shall issue\u2019 jurisdictions, where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability.\u201d<\/p>\n<p>In yesterday\u2019s decision, the Supreme Court held that New York\u2019s proper-cause requirement violates the Second Amendment, applicable to the state by virtue of the Fourteenth Amendment and the incorporation doctrine. (For more on the incorporation doctrine, read <a href=\"https:\/\/thefederalist.com\/2021\/04\/30\/what-you-need-to-know-about-the-big-gun-rights-case-the-supreme-court-just-took\/\">here<\/a>.)<\/p>\n<p>That law, the Supreme Court reasoned, unconstitutionally \u201cprevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms because New York failed to prove that the Second Amendment\u2019s text, as informed by history,\u201d demonstrates the government may limit the right to carry arms in public to individuals who have \u201ca special need for self-protection distinguishable from that of the general community.\u201d<\/p>\n<p>While the court\u2019s Thursday decision technically concerned only the New York statute challenged in the lawsuit, the opinion\u2019s analysis applies equally to the \u201cmay issue\u201d licensing schemes in force in five other jurisdictions, meaning those will soon fall too.<\/p>\n<h2>2. The Supreme Court Is Done Punting on the Second Amendment<\/h2>\n<p>Thursday\u2019s decision in <em>Bruen <\/em>proves significant beyond the bottom line, however, first because the Supreme Court has finally ended its two-decades-long punt on Second Amendment jurisprudence.<\/p>\n<p>In 2008, the Supreme Court held in <em>District of Columbia v. Heller <\/em>that the Second Amendment, which provides, \u201ca 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,\u201d protects \u201cthe individual right to possess and carry weapons in case of confrontation.\u201d The <em>Heller <\/em>court further held that an individual\u2019s right exists irrespective of service in a militia, reasoning that the \u201cmilitia\u201d clause, while explaining a purpose of the protection, did not limit the individual right.<\/p>\n<p>Two years later, the high court in\u00a0<em>McDonald v. City of Chicago<\/em>\u00a0held the Second Amendment \u201cis fully applicable to the States\u201d and state subdivisions such as counties and cities. Accordingly, state and state subdivisions, like the federal government, remain constrained by the national Constitution from infringing on an individual\u2019s right to keep and bear arms.<\/p>\n<p>While <em>Heller<\/em>\u00a0and\u00a0<em>McDonald <\/em>were landmark Supreme Court decisions and the first Second Amendment cases decided by the high court since 1939, both cases addressed issues that were narrow and limited to whether laws banning or regulating firearms in a person\u2019s home violated the Second Amendment. In both cases, the Supreme Court declared the laws unconstitutional.<\/p>\n<p>But <a href=\"https:\/\/thefederalist.com\/2021\/04\/30\/what-you-need-to-know-about-the-big-gun-rights-case-the-supreme-court-just-took\/\">since then<\/a>, \u201cthe Supreme Court has rejected numerous challenges to other laws affecting the right to bear keep and bear arms, taking a nearly universal hands-off approach on the Second Amendment. The rare exception came in 2016, when the court, without a hearing and in an unsigned two-page order, held in\u00a0<em>Caetano v. Massachusetts<\/em>\u00a0that stun guns were protected under the Second Amendment. Unsurprisingly, that decision added little clarity to Second Amendment jurisprudence.\u201d<\/p>\n<p>That hands-off approach continued even while lower federal courts ignored the Supreme Court\u2019s analysis in <em>Heller, <\/em>which made clear that the Second Amendment protects \u201cfirearms commonly used for a lawful purpose.\u201d Thus, for instance, the Supreme Court in 2017 let <a href=\"https:\/\/thefederalist.com\/2017\/11\/27\/supreme-court-guts-second-amendment-refusing-hear-semi-auto-ban-case\/\">stand<\/a> the Fourth Circuit\u2019s holding in\u00a0<em>Kolbe v. Hogan\u00a0<\/em>that semi-automatic rifles are not constitutionally protected \u201carms,\u201d even though \u201cthe prevalence of lawfully used AR-15s and semiautomatic AK-47s clearly meets the\u00a0<em>Heller\u00a0<\/em>standard for garnering Second Amendment protection.\u201d<\/p>\n<p>With the Supreme Court\u2019s silence in the Second Amendment arena came the creation of conflicting standards by the various circuit courts and many unanswered questions. On Thursday, however, the high court spoke, and in a majority opinion joined in full by six justices. That opinion clarified several significant aspects of the scope and protections guaranteed by the Second Amendment.<\/p>\n<h2>3. The Right to Bear Arms Is Not a Second-Class Right<\/h2>\n<p>Justice Thomas, writing for the majority, began the court\u2019s opinion by noting that since <em>Heller <\/em>and <em>McDonald, <\/em>the lower courts have \u201ccoalesced around a \u2018two-step\u2019 framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.\u201d That framework, in general, began by asking whether the challenged law regulates activity falling outside the scope of the Second Amendment, as originally understood. If outside the scope of the Second Amendment, the regulation passes constitutional muster, and no further analysis is required.<\/p>\n<p>If, however, the regulated activity falls within the general parameters of Second Amendment protection, courts applying the two-step analysis ask \u201chow close the law comes to the core of the Second Amendment right and the severity of the law\u2019s burden on that right.\u201d Here, Justice Thomas noted that \u201cCourts of Appeals generally maintain \u2018that the core Second Amendment right is limited to self-defense in the home.\u2019\u201d Other laws affecting the right to bear arms\u2014because they were not considered \u201ccore\u201d\u2014received less protection, with lower courts applying \u201cintermediate scrutiny\u201d and considering \u201cwhether the Government can show that the regulation is \u201csubstantially related to the achievement of an important governmental interest.\u201d<\/p>\n<p>Thursday\u2019s opinion expressly rejected that two-part approach, stating that \u201cdespite the popularity of this two-step approach, it is one step too many.\u201d Instead, the Supreme Court held \u201cthat when the Second Amendment\u2019s plain text covers an individual\u2019s conduct, the Constitution presumptively protects that conduct.\u201d Thus, under <em>Bruen<\/em>, to survive a Second Amendment challenge, the government must do more than \u201csimply posit that the regulation promotes an important interest.\u201d Rather, the government must affirmatively prove \u201cthat the regulation is consistent with this Nation\u2019s historical tradition of firearm regulation.\u201d<\/p>\n<p>In reaching this conclusion, the Supreme Court stressed that \u201cthe constitutional right to bear arms in public for self-defense is not \u201ca second-class right,\u201d subject to an entirely different body of rules than the other Bill of Rights guarantees.\u201d \u201cWe know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need,\u201d the court noted.<\/p>\n<p>\u201cThat 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\u2019s 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,\u201d the high court stressed.<\/p>\n<h2>4. The Right to Self-Defense Is Not Limited to the Home<\/h2>\n<p>After rejecting the two-step approach to the Second Amendment, the court considered whether New York\u2019s \u201cmay issue\u201d permitting regime \u201cwas consistent with this Nation\u2019s historical tradition of firearm regulation.\u201d That detailed analysis marched the reader through centuries of history, from medieval England through the early 20th century.<\/p>\n<p>While Justice Thomas\u2019s opinion hit several high points, the \u201cshort prologue\u201d he provided to his analysis of the Civil War and antebellum time periods proved most powerful:<\/p>\n<blockquote class=\"wp-block-quote\">\n<p>Even before the Civil War commenced in 1861, this Court indirectly affirmed the importance of the right to keep and bear arms in public. Writing for the Court in <em>Dred Scott v. Sandford,<\/em> 19 How. 393 (1857), Chief Justice Taney offered what he thought was a parade of horribles that would result from recognizing that free blacks were citizens of the United States. If blacks were citizens, Taney fretted, they would be entitled to the privileges and immunities of citizens, including the right \u2018to keep and carry arms wherever they went.\u2019 Thus, even Chief Justice Taney recognized (albeit unenthusiastically in the case of blacks) that public carry was a component of the right to keep and bear arms\u2014a right free blacks were often denied in antebellum America.<\/p>\n<\/blockquote>\n<p>From there, the majority opinion in <em>Bruen <\/em>thoroughly analyzed the \u201chistorical tradition of firearm regulation\u201d before holding \u201cthe Second Amendment guaranteed to \u2018all Americans\u2019 the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions.\u201d \u201cTo confine the right to \u2018bear\u2019 arms to the home would nullify half of the Second Amendment\u2019s operative protections,\u201d the court stressed, adding that \u201cconfining the right to \u2018bear\u2019 arms to the home would make little sense given that self-defense is \u2018the central component of the [Second Amendment] right itself,\u2019 and \u201cconfrontation can surely take place outside the home.\u201d<\/p>\n<p>In sum, then, the <em>Bruen <\/em>decision did three important things: First, it expressly rejected the two-part test invented by the lower courts over the 30-some years since <em>Heller <\/em>and <em>McDonald. <\/em>Second, the Supreme Court made clear the controlling question is whether the regulation at issue \u201cis consistent with this Nation\u2019s historical tradition of firearm regulation.\u201d Third, the <em>Bruen <\/em>court made clear that the Second Amendment\u2019s guarantee of the right to bear arms exists outside the home.<\/p>\n<h2>5. The Supreme Court Provides Great Guidance<\/h2>\n<p>Beyond these three significant holdings, the Supreme Court\u2019s opinion in <em>Bruen <\/em>represents a substantial advancement of Second Amendment jurisprudence because the high court\u2019s analysis provides extensive direction and guidance relevant to future cases.<\/p>\n<p>For instance, in holding that there is a constitutional right to keep and bear arms in the public, the court delineated three limited parameters for regulations on that right, namely \u201cwell-defined restrictions governing the intent for which one could carry arms, the manner of carry, or the exceptional circumstances under which one could not carry arms.\u201d On the third point, the court made clear that while regulations of weapons in \u201csensitive places\u201d was constitutionally permissible, \u201csensitive places\u201d cannot be defined so broadly that it includes all places where people congregate.<\/p>\n<p>A second point made by the majority in <em>Bruen<\/em> concerned the constitutionality of \u201cshall issue\u201d laws. The court made clear that such licensing schemes that contained \u201cnarrow, objective, and definite standards\u201d remained constitutional under <em>Bruen\u2019<\/em>s analysis.<\/p>\n<p>However, the court added that \u201cbecause any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.\u201d This dicta provides a strong basis for challenges to abusive licensing systems.<\/p>\n<p>The Supreme Court provided further guidance for courts by explaining how they should determine whether a challenged regulation \u201cis consistent with this Nation\u2019s historical tradition of firearm regulation.\u201d That historical inquiry \u201cwill often involve reasoning by analogy,\u201d the <em>Bruen <\/em>court explained. Thus, such analogical reasoning will require a court to first determine \u201cwhether a historical regulation is a proper analogue for a distinctly modern firearm regulation,\u201d and that requires the court to determine \u201cwhether the two regulations are \u2018relevantly similar.\u2019\u201d<\/p>\n<p>Two metrics that guide this analysis, the Supreme Court explained, are the \u201chow and the why the regulations burden a law-abiding citizen\u2019s right to armed self-defense.\u201d Thus, in determining whether the modern regulation is analogous to an historical law, court should consider if they impose a \u201ccomparable burden on the right of armed self-defense\u201d and whether the \u201cburden is comparably justified.\u201d<\/p>\n<p>Another point clarified by the Supreme Court in Thursday\u2019s opinion concerns the importance of historical sources. \u201cWhen it comes to interpreting the Constitution, not all history is created equal,\u201d the court stressed, noting that \u201cconstitutional rights are enshrined with the scope they were understood to have when the people adopted them.\u201d<\/p>\n<p>Relatedly, the <em>Bruen <\/em>analysis also made clear that the existence of some historical \u201coutliers,\u201d meaning a few statutes or court decisions that supported the gun-control measure, could not overcome \u201cthe overwhelming weight of other evidence regarding the right to keep and bear arms.\u201d That point will prove important in the future to prevent the government from citing some random statute found buried in the archives to thwart the Second Amendment.<\/p>\n<p>The Supreme Court\u2019s rejection of any \u201cjudge-empowering \u2018interest-balancing inquiry\u2019\u201d that considers \u201cwhether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute\u2019s salutary effects upon other important governmental interests,\u201d is also key to the future of Second Amendment jurisprudence because it makes clear that a court cannot trump the individual\u2019s right to keep and bear arms out of a desire to protect the public.<\/p>\n<p>Here, the court made two salient points\u2014ones often overlooked by those seeking to sacrifice the Second Amendment for the illusion of public safety. First, \u201c[t]he right to keep and bear arms . . . is not the only constitutional right that has controversial public safety implications.\u201d Consider, for instance, the right to be free from unreasonable searches and seizures, protected by the Fourth Amendment, and the number of lives that could be saved if police arrested, without cause, gang members and searched their property.<\/p>\n<p>Second, the balance sought between gun rights and public safety has already been struck, the court stressed, writing: \u201cThe Second Amendment \u2018is the very product of an interest balancing by the people\u2019 and it \u2018surely elevates above all other interests the right of law-abiding, responsible citizens to use arms\u2019 for self-defense.\u201d Or more bluntly put: If Americans desire to limit the right of law-abiding citizens to keep and bear arms, they must first amend the Constitution.<\/p>\n<h2>6. Six Solidly Originalist Judges<\/h2>\n<p>The sixth key conclusion flowing from the Supreme Court\u2019s 6-3 decision in <em>Bruen <\/em>reaches far beyond the Second Amendment: The Supreme Court now has a solid originalist majority.<\/p>\n<p>Following decades of fractured Supreme Court decisions, with no one opinion garnering a majority of votes, yesterday six justices signed on, in total, to the majority opinion in <em>Bruen<\/em>. Throughout, the opinion represented an ode to originalism, beginning, as noted above, with the court\u2019s pronouncement \u201cConstitutional rights are enshrined with the scope they were understood to have when the people adopted them.\u201d<\/p>\n<p>Further, while acknowledging that \u201capplying constitutional principles to novel modern conditions can be difficult and leave close questions at the margins,\u201d the six-justice majority provided a strong defense of originalism as the most feasible interpretative methodology. \u201cReliance on history to inform the meaning of constitutional text\u2014especially text meant to codify a pre-existing right\u2014is, in our view, more legitimate, and more administrable, than asking judges to \u2018make difficult empirical judgments\u2019 about \u2018the costs and benefits of firearms restrictions,\u2019 especially given their \u2018lack [of] expertise\u2019 in the field,\u201d the court stressed.<\/p>\n<p>While future constitutional cases, including Second Amendment ones, will surely see a splintering of the six justices, that all six justices agreed, in principle, with the fundamentals of originalism set forth by Justice Thomas speaks volumes to the promise of a high court focused on applying the Constitution, not rewriting it.<\/p>\n<hr class=\"wp-block-separator\" \/>\n<p>\n  Margot Cleveland is The Federalist&#8217;s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. <\/p>\n<p>Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize\u2014the law school\u2019s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. <\/p>\n<p>As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Yesterday, in a 6-3 decision, the U.S. Supreme Court held in\u00a0New York State Rifle and Pistol Association, Inc. v. Bruen that \u201cmay issue\u201d gun licensing that allows state officials to<\/p>\n","protected":false},"author":499,"featured_media":2315279,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"","fifu_image_alt":"","footnotes":""},"categories":[],"tags":[],"class_list":["post-1527523","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1527523","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/499"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=1527523"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1527523\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2315279"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=1527523"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=1527523"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=1527523"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}