OSD 142: Love means never having to say certiorari
Two worldviews at the Supreme Court.
There’s something clarifying about judges opining on gun laws. Whether you like what they’re saying or not, they make their core premises pretty clear. The last time this happened was back in “OSD 120: Guns are dangerous. That’s a feature, not a bug.” Judge Roger Benitez had just struck down California’s assault weapons ban. He wrote:
In the year 1989, the California Legislature was not concerned with maintaining room for a citizen’s constitutional right to have a common firearm of one’s choosing to defend hearth and home. In making its policy choice, the California Legislature neither mentioned a modern rifle as a means of self-defense, nor did the core Second Amendment right appear to have been any part of its consideration. The formal legislative findings say nothing about self-defense. The balance was simply about criminal use, on the one hand, versus sporting or recreational activities, on the other hand. In the pre-Heller jurisprudential milieu, the pure policy choice made sense.
Benitez’s starting point is clear: the individual right of self-defense actually matters. Everything else flows from that.
And last week, this laying out of premises happened at the Supreme Court in oral arguments for New York State Rifle & Pistol Assocation v. Bruen, the case aimed at taking down may-issue carry permit regimes.
Early in the two-hour session, Justice Breyer had an revealing exchange with Paul Clement, NYSRPA’s lawyer:
Clement: … the reason I'm so confident that this regime is problematic on its face is because, on its face, at least as interpreted by the highest court in New York, the requirement you need to show in order to carry concealed for self-defense but not for hunting and target practice is you have to show that you have a need for self-defense that distinguishes you from the generalized community, from the general community. So New York’s law on its face says that the only way that you can carry for self-defense is if you demonstrate your atypicality with respect to your need for self-defense. And that’s…
Breyer: So what do they say? Because, look, [your client can carry]. He has his license. He can carry it for self-defense under the license to and from work and, as you say, can carry it for hunting, target practice, et cetera, concealed, and in your opinion, is it supposed to say you can carry a concealed gun around the streets or the town or outside just for fun? I mean, they are dangerous, guns. I mean, so what’s it supposed to say?
In a way, Breyer is right! Guns are dangerous. The difference is that he thinks that’s the end of the argument, not the beginning. “You can’t just carry a gun around town, because guns are dangerous. QED.” His core premise is clear: dangerous things must be restricted. Everything else flows from that.
But of course guns are dangerous. A weapon wouldn’t be any good for self-defense if it wasn’t dangerous. That came up throughout the oral arguments. Barbara Underwood, the solicitor general of New York, used it to argue that guns should be most restricted in high-crime areas. But Chief Justice Roberts raised the point that if you think of that dangerousness as a feature, not a bug, then high-crime areas are exactly where people should be able to carry:
Roberts: Now Heller relied on the right to defense as a basis for its reading of the — of the Second Amendment, or that was its reading. Now I would think that arises in more populated areas. If you're out in the woods, presumably, it’s pretty unlikely that you’re going to run into someone who’s going to rob you on the street. On the other hand, there are places in a in a densely populated city where it’s more likely that that’s where you’re going to need a gun for self-defense and, you know, however many policemen are assigned, that, you know, there are high-crime areas. And it seems to me that what you’re saying is that’s probably the last place that someone’s going to get a permit to carry a gun. How is that — regardless of what we think of the policy of that, how is that consistent with Heller’s reasoning that the reason the Second Amendment applies … a direct personal right is for self-defense?
Underwood: Well, I’ll say a couple of things about that. One, we … if you go right to history and tradition, the history was to regulate most strenuously in densely populated places. That’s what fairs and markets are. So we have history. But we also have a rationale for that history, which is that where there is dense population, there is also the deterrent of lots of people and there is the availability of law enforcement. In England, the idea was that it was the King’s Peace and it was, in fact, an insult to the king for people to take things into their own hands and —
Roberts: Well, but that’s not always true. It depends, obviously, in the jurisdiction and all that, but simply because a place is — well, it’s paradoxical that you say a place is a high-crime area, but don’t worry about it because there are a lot of police around.
Underwood: Well, and the other thing is that this is -- that these regulations are all an effort to accommodate the right, to recognize and respect the right of self-defense while regulating it to protect the public safety. And in areas where people are packed densely together, as the questioning that just happened displays, the risks of harm from people who are packed shoulder to shoulder, all having guns, are much more acute than they are at —
Roberts: Oh, sure, and I can understand, for example, a regulation that says you can’t carry a gun into, you know, Giants Stadium, just because a lot of things are going on there and it may not be safe to have … for people to have guns. On the other hand, if the purpose of the Second Amendment is to allow people to protect themselves, that’s implicated when you’re in a high-crime area. It’s not implicated when you’re out in the woods.
Underwood: Well, I think it is implicated when you’re out in the woods. It’s just a different set of problems. I mean, you’re —
Roberts: Yeah, deer.
Underwood: — you’re deserted there and you can’t — and law enforcement is not available to come to your aid if something does happen. But —
Roberts: Well, how many muggings take place in the forest?
There you see one person thinking of dangerousness as a feature, and the other thinking of it as a bug. And because of that dichotomy, they give exactly opposite answers about where gun rights are most implicated.
We’ll get a ruling on this case by next June. The oral arguments went well for Clement, and it’s unlikely that New York’s may-issue regime will survive in its current form. But even more than that, this case is about the Supreme Court telling lower courts how to handle Second Amendment claims in general — AWBs, mag capacity laws, the NFA, the whole deal. A right that’s in good health never has to go to the Supreme Court to be saved. It’s saved long before that, when it stops being called into question.
This week’s links
Fun YouTube channel.
“For public defenders in New York, representing clients unjustly criminalized for gun possession is a matter of principle. Now, they have the Supreme Court’s attention.”
A stark look at what New York’s gun laws do to people.
What we’re trying to do here is not limited to a Supreme Court case. We’re trying to push a conversation that has not really developed at all in New York about whether or not different ways of thinking about the criminal legal system should also apply to gun possession. Here, that conversation is kryptonite — no one wants to have it. And a lot of the people who support criminal law reform in New York have never really squarely addressed what to do with people possessing firearms for self-defense. But that’s a huge part of New York’s criminal legal system. Over a quarter of my felony caseload as a public defender consists of people possessing — not using, just possessing — a firearm without a license.
But like I said, there is a very one-dimensional understanding of gun policy in New York, particularly in New York City, which is that you shouldn’t have a gun. And if you do, that you should be separated from your family and community, incarcerated, and face a host of perpetual punishment for the rest of your life. That’s what New York thinks is “public safety.”
tfw someone takes the last toblerone
New Jersey’s state senate president lost reelection to a guy who ran after getting mad about being denied a carry permit
[Edward] Durr, who has worked as a truck driver for the past 25 years, previously ran an unsuccessful campaign for a New Jersey General Assembly seat in 2019. He said that he was motivated to run for Sweeney’s state Senate seat in 2021 by anger over being denied a concealed carry gun permit during an August interview with conservative commentator Elizabeth Nader.
“I was told flat-out by the local sheriff, ‘Don’t even bother.’ And that kind of angered me,” said Durr. “I’ve never been arrested and I couldn’t get a concealed carry? ... That really angered me, so I looked into what can you do to get into politics.”
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