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Tuesday, April 27, 2021

Supreme Court Agrees to Hear Landmark Second Amendment Case. Here’s What You Need to Know

The case involves New York gunowners Brandon Koch and Robert Nash, who were denied a license to carry because they did not “demonstrate a special need for self-defense.”

Image Credit: Chairman of the Joint Chiefs of Staff from Washington D.C

The Supreme Court on Monday announced it will hear a case that could determine whether Americans have the right to carry a firearm outside the home.

“The court agreed to hear a challenge to a New York state law that allows residents to carry a concealed handgun only if they can demonstrate a special need beyond a general desire for self-protection,’ NBC News reports.

It will mark the first time in more than a decade that the high court will take up a major case central to gun rights.

A Flat Out Prohibition?

The case involves gun owners Brandon Koch and Robert Nash, who applied for a license to carry a handgun. Unlike most US states, New York prohibits carrying a loaded handgun outside the home without a carry license.

According to an amicus brief filed with the court in December, Nash, citing a rash of robberies in his neighborhood, requested a license to carry for self-defense after completing an advanced firearm safety training course.

He was denied, with a police officer stating Nash had not shown “proper cause.” Koch was denied on similar grounds.

As the Giffords Law Center notes, licenses are only granted to individuals who show “proper cause,” which means applicants must “demonstrate a special need for self-defense.” This essentially gives law enforcement sole and complete discretion in who receives a permit, which the plaintiffs argue is a clear violation of the Second Amendment.

“A law that flatly prohibits ordinary law-abiding citizens from carrying a handgun for self-defense outside the home cannot be reconciled with the Court’s affirmation of the individual right to possess and carry weapons in case of confrontation,” the plaintiffs’ lawyers wrote. “The Second Amendment does not exist to protect only the rights of the happy few who distinguish themselves from the body of ‘the people’ through some ‘proper cause.’ To the contrary, the Second Amendment exists to protect the rights of all the people.”

The state of New York disagrees, arguing that its permit process is not incompatible with Supreme Court precedent.

“This flexible standard, which numerous New York residents have successfully satisfied, generally requires a showing that the applicant has a non-speculative need for self-defense,” New York’s lawyers wrote. “Absent such a need, applicants may receive a ‘premises’ license that allows them to keep a firearm in their home or place of business, or a ‘restricted’ license that allows them to [carry] public for any other purposes for which they have shown a non-speculative need—such as hunting, target shooting, or employment.”

An Individual Right That Preserves All Others

The Supreme Court’s decision to hear the case marks the biggest Second Amendment showdown since the landmark 2008 case District of Columbia v. Heller, in which the court ruled the Constitution protects an individual’s right to keep and bear arms.

In that pivotal 5-4 decision, the high court upheld an appellate ruling that embraced the “individual-right” theory of the Second Amendment. The Constitution states: “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.”

Some had interpreted the inclusion of the words “a well regulated Militia” to mean the Second Amendment was a “collective right,” but the high court rejected this claim.

“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia,” the court ruled.

The Heller ruling was not without controversy. In some ways, the decision was even complicated for libertarians and constitutionalists. Though many may have been pleased with the end result—the right for individuals to bear firearms—there was the matter of five members of an elite court overturning a local prohibition.

Some jurists compared the ruling to a right-wing version of Roe vs. Wade.

“The Roe and Heller courts are guilty of the same sins,” wrote judge J. Harvie Wilkinson III. “[In both] the court claimed to find in the Constitution the authority to overrule the wishes of the people’s representatives.”

Still, there is no doubt that the Supreme Court reached the proper conclusion in asserting that the Second Amendment is an individual right, not a “collective right.” The reason this is obvious is that, as economic historian Robert Higgs has pointed out, the Framers of the Constitution created a government rooted in individual rights.

“Clearly, government in the United States was founded on an explicit recognition of rights—natural, inalienable rights of each individual—and governments were understood to be legitimate only insofar as they acted to protect those rights,” Higgs has observed. “Individuals and their rights were regarded as morally prior to government and its mandates; governments were to serve the people, not the people the government.”

Government, as the Founders saw it, was justifiable insofar as it protected natural, individual rights. It was the raison d’etre of government, and the government had no legitimate purpose beyond this scope.

“When governments proved abusive of their powers, when they destroyed rather than protected the natural rights of individuals, the people had a right to defend their rights and to overturn the government that threatened them,” noted Higgs.

One need not embrace this philosophy of government, of course. But there’s no question that the Constitution was grounded in individual rights, Higgs observes. And he was hardly alone in his assessment.

As the New York Times noted in the wake of Heller, even prominent liberal law professors—including Akhil Reed Amar of Yale, Laurence H. Tribe of Harvard, and Sanford Levinson of the University of Texas—grudgingly conceded “that the amendment in fact protects an individual right.” (Levinson captured the tone of the scholars by stating the Second Amendment was a national embarrassment, though an individual right nevertheless.)

The Supreme Court will soon determine how far that individual right extends. People no doubt have different feelings on this point, but we’d do well to remember the wise words of Frederick Douglass, who noted the Second Amendment historically has been crucial to the preservation of liberty.

“…the liberties of the American people were dependent upon the ballot-box, the jury-box, and the cartridge-box; that without these no class of people could live and flourish in this country,” Douglass wrote in his autobiography, Life and Times of Frederick Douglass.

Douglass was right. Let’s hope the high court continues to see the Second Amendment as a bulwark of freedom as well.

  • Jonathan Miltimore is the Senior Creative Strategist of at the Foundation for Economic Education.