Web Exclusive: SCOTUS to consider carry issue in major Second Amendment case

For the first time in more than a decade, the U.S. Supreme Court has agreed to hear a significant Second Amendment case that could redefine the right to bear arms in America.

The nation’s highest court will listen to arguments in NY State Rifle & Pistol Assoc. v. Corlett, a case concerning a New York law that requires individuals to get a license to carry a concealed gun outside their homes. It will be the first time SCOTUS has directly addressed this particular issue.

The New York law limits individuals from carrying a concealed handgun in public, with a few exceptions for those who can demonstrate an “actual and articulable” need for self-protection.

The high court’s review of the case comes on the heels of the fatal mass shooting at Indianapolis’ FedEx Ground facility last month, as well as a slew of mass shootings across the country. Meanwhile, gun retailers have seen a surprisingly sharp increase of gun sales to first time carriers during 2020.

Mark Oliva, director of public affairs at National Shooting Sports Foundation, said that 40% of firearm purchasers bought a gun for the first time in 2020.

“It really is a tectonic shift in the conversation about gun ownership in America today,” he said.

In the case before the high court, the New York State Rifle & Pistol Association is asking the justices to clarify what it calls a critical issue that has divided by numerous courts of appeals – “whether the Second Amendment allows the government to prohibit ordinary law abiding citizens from carrying handguns outside the home for self-defense.”

Who has discretion?

While most states continue to require a permit in order to carry a concealed weapon, more states now place few or no restrictions on open carry, according to the Giffords Law Center.

“The real problem is that the general notion of self defense outside the home that is guaranteed to ‘the people’ in the Second Amendment is not being allowed to be exercised by the people. It’s only for a select number of people who can demonstrate that ‘special need’ above the general population,” said Indianapolis attorney Guy Relford. “It goes right back to the Second Amendment where it says ‘the right of people to keep and bear.’”

There are two kinds of licensing schemes among states that issue a license to carry a handgun, said Relford, who specializes in firearm cases.

The “may issue” licensing scheme does not guarantee individuals a carry permit, even if they have fulfilled the requirements to obtain one. A state may or may not issue the right to concealed carry and has discretion to do so, according to U.S. Concealed Carry Association. States that operate with a “shall-issue” licensing scheme will issue a concealed carry license or permit to those who do meet the requirements.

What NYSRPA is asking SCOTUS to do in the case is exactly what Indiana did more than 40 years ago in Schubert v. DeBard, Relford said. Before 1980, the Hoosier state had a “may issue” scheme similar to that at issue in the New York law.

“The licensing statute said that in Indiana the person had to have a proper reason for getting a license to carry a handgun outside of the home,” he said. “The licensing scheme in New York is more egregious.”

In its question, the New York State Rifle & Pistol Association points to two landmark cases decided by the Supreme Court in recent years – District of Columbia v. Heller and in McDonald v. City of Chicago. In Heller, justices held that the Second Amendment protects “the individual right to possess and carry weapons in case of confrontation.” In McDonald, they held that right “is fully applicable to the States.”

“If Heller tells us that the right to keep and bear arms is the individual right and McDonald tells us that the states must enforce protections on that second amendment right, that should tell us where the court should be when it comes to the New York case,” Oliva said.

“I think that is where we look at the heart of the question. Does the state have the ability to arbitrarily limit your ability to exercise your right to bear and arms? Heller says no and McDonald says you cannot do that and must protect your Second Amendment right,” Oliva continued. “We feel based on those two precedents that we think this case will address that question and settle that once and for all.”

Cracking a closed door?

Oliva said the lack of movement from the Supreme Court on Second Amendment cases has been notable and frustrating.

“Just last year, they declined to take 10 cases before the court,” he noted. “It was interesting to see the timing and how that happened. Now that you have Justice Amy Coney Barrett on the court and five justices who describe themselves as ‘originalists’ is very encouraging for the firearm industry.”

Relford agreed, noting that Coney Barrett’s addition to the high court could shake things up.

“When Justice Gorsuch replaced Justice Scalia, it was a conservative for conservative. When Justice Kavanaugh replaced Justice Kennedy, he was usually the swing vote in Heller. You are just sort of keeping par there and you are staying even,” Relford said. “But when Justice Barrett replaced Justice Ginsburg, now you’ve taken a justice who was very hostile to the Second Amendment and replaced her with someone who is very strong on the Second Amendment.”

Argument for the case has been scheduled for the Supreme Court’s October 2021 term.