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.

United States Constitution, Bill of Rights, 2nd amendment.

While the rest of the country seems intensely focus on whether Roe v. Wade is overturned, a good number of us are pretty interested in how this one goes.

The People’s Republic of New York, the most statist state that ever stated, is under the scrutiny of SCOTUS again, thanks to the New York State Rifle Association (NYSRA), and their crusade against New York’s tyrannical positions on guns.

The latest kerfuffle is over permits to carry. You see, New York knows they can’t ban guns outright, but they have done everything in their power to make sure you can’t actually wield it.

One of these rules is that in order to carry a gun on your person in New York, you must apply for a permit, and show cause for getting one, such as someone has been threatening you, or you’re in some high-risk job.

This seems totally fair, right? Criminals are always courteous enough to give you a heads up that they’re coming for you, so you can apply for such a permit, buy a gun, and be prepared.

Counsel for NYSRA opened by saying, “Carrying a firearm outside the home is a fundamental constitutional right. It is not some extraordinary action that requires an extraordinary demonstration of need.”

We’re of course biased here at Logical Libertarian towards the freedom to own and carry a gun, but few other rights, if any, allow the state to make you prove your desire to exercise that right. This is highly “atypical” as Counsel Paul Clement put it. The bill of rights specifically says, “to keep and bear arms,” but NY’s law effectively makes “bearing” a privilege the state grants you, not a right.

For instance, you don’t have to go to the Mayor and get a permit to tell your local conseltwerp to eat a bag of dicks, and then be required to supply a load of evidence to suggest said counseltwerp has a demonstrable need to eat that bag of dicks.

Justices Barrett, Roberts, Alito, and Kagen all pressed NYSRA’s counsel on the “sensitive places” allowances. This is the idea that the majority of justices agreed in previous decisions, the government has a right to refuse carrying in places like schools, government buildings, etc. So they were testing the idea of whether NY is just basically declaring the entirety of a city or district, can be deemed a “sensitive place.” The crux of the argument being, when is it OK to declare a place a sensitive place, versus when is the place to broad to be declared as much.

One thing to note, in the sensitive place issue, people still have the right to carry in general, and even if they have a permit, they can’t carry in a sensitive place, so it seems a little disingenuous to debate. The law in question forces people to get a permit to carry in general. The sensitive places restricts anyone other than law enforcement from carrying in that particular place. While they’re related, they are not the same.

Counsel for NYSRA stated succinctly:

At the end of the day, I think what it means to give somebody a constitutional right is that they don’t have to satisfy a government official that they have a really good need to exercise it or they face atypical risks.

~Paul Clement

Counsel Clement went on to point out that while they accept the “sensitive places” limits, and even limits on who can carry, such as criminals and people with mental illness, their side opposes the “atypical” stance NY has adopted. Meaning, that NY is essentially saying a typical person may not carry, only a person who’s atypical, such as someone at elevated risk, is the problem. It can’t be a right, if one has to be unique to exercise it.

One issue that also comes up, is tradition. SCOTUS like to make sure laws are adjudicated consistently, so people who were perfectly OK one day, aren’t criminals the next. Change should come gradually, and not sweeping and fast.

They’ll look at old law, sometimes even English law adopted prior to the Constitution, but which the Constitution got it’s basis from. Sotomayor wanted to cite traditional laws restricting weapons, which states have adopted, many of which American law is inspired by.

She stated:

The one thing that I’ve looked at in this history is the plethora of regimes that states pick, and that starts in English law, through the colonies, through post-Constitution, to post-Civil War, to the 19th Century, to even now, those 43 states that you’re talking about, most of them didn’t give unrestricted rights to carry in one form or another until recent times. Before recent times, there were so many different regulations.

What it appears to me is that the history tradition of carrying weapons is that states get a lot of deference on this.

And the one deference that you haven’t addressed is the question presented is what’s the law with respect to concealed weapons. In 1315, the British Parliament specifically banned the carrying of concealed arms.

In colonial America, at least four, if not five, states restricted concealed arms. After the Civil War, there were many, many more states, some include it in their constitution, that you can have a right to arms but not concealed. You can go to Alabama, Georgia, and Louisiana, which are now more open—more free in granting the right to carry guns, but they prohibited through their history concealed weapons, the carrying of concealed weapons.

It seems to me that if we’re looking at that history and tradition with respect to concealed arms that there is not the same requirement that there is in the home. One of the things Heller pointed to was there were few regulations that prohibited the carrying or the keeping of arms in homes. But that’s not true with respect to the regulations about keeping of arms outside of homes. Putting aside the prohibitions, regulations on sensitive places, regulations on the types of people, it seems to me that I don’t know how I get past all that history

~Justice Sotomayor

But justice Kavanaugh, speaking with Clement reiterated that rights start with the Constitution’s text, not tradition or other laws. So basically, Sotomayor’s argument was stupid, and she should shut the fuck up with that noise.

As counsel Underwood for the state of NY came to make her shitty arguments, Justice Roberts hit a home run with this question:

Now Heller relied on the right to defense as a basis for its reading 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 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?

~Chief Justice Roberts

Counsel Underwood argued:

Well, and the other thing 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.

~Barbara Underwood

Justice Roberts, realizing this argument was weak, countered with:

What if it’s one of these crime waves, whether it’s a celebrated spate of murders carried out by a particular person, I don’t know who that is—you know, the Son of Sam or somebody else? Is that a good reason to—a atypical reason? Is that a justification? Some random person is going around shooting people.

I’d like to have a firearm even though I didn’t feel the need for one before?

~Chief Justice Roberts

Justice Alito, not to shy away from this line of questioning, pushed Underwood further by asking:

Could I explore what that means for ordinary law-abiding citizens who feel they need to carry a firearm for self-defense? So I want you to think about people like this, people who work late at night in Manhattan, it might be somebody who cleans offices, it might be a doorman at an apartment, it might be a nurse or an orderly, it might be somebody who washes dishes. None of these people has a criminal record.

They’re all law-abiding citizens.

They get off work around midnight, maybe even after midnight.

They have to commute home by subway, maybe by bus.

When they arrive at the subway station or the bus stop, they have to walk some distance through a high-crime area, and they apply for a license, and they say: Look, nobody has said I am going to mug you next Thursday.

However, there have been a lot of muggings in this area, and I am scared to death. They do not get licenses, is that right?

How is that consistent with the core right to self-defense, which is protected by the Second Amendment?

~Justice Alito

Counsel Underwood’s arguments in response again were that basically, a lot of people crowded together with guns, is inherently an unsafe situation, and thus why NY should have the right to prevent such a situation. An argument not supported by any evidence, but commonly argued as justification for restricting gun rights.

Justice Alito really went after her in this exchange:

Samuel A. Alito, Jr.

There are — there are a lot of armed people on the streets of New York and in the subways late at night right now, aren’t there?

Barbara D. Underwood

I don’t know that there are a lot of armed people.

Samuel A. Alito, Jr.

No?

Barbara D. Underwood

I think there are people —

Samuel A. Alito, Jr.

How many — how many —

Barbara D. Underwood

— there are people with illegal guns if that’s what you’re —

Samuel A. Alito, Jr.

Yeah, that’s what I’m talking about.

Barbara D. Underwood

— referring to. Yeah.

Samuel A. Alito, Jr.

How many illegal guns were seized by the — by the New York Police Department last year? Do you — do you have any idea?

Barbara D. Underwood

I don’t have that number, but I’m sure there’s a — it’s a substantial number.

Samuel A. Alito, Jr.

But the people — all — all these people with illegal guns, they’re on the subway —

Barbara D. Underwood

I don’t — I don’t —

Samuel A. Alito, Jr.

— they’re walking around the streets, but the ordinary hard-working, law-abiding people I mentioned, no, they can’t be armed?

Barbara D. Underwood

Well, I think the subways, when there are problems on the subways, are protected by the — the — the transit police, is what happens, because the idea of proliferating arms on the subway is precisely, I think, what terrifies a great many people. The other point is that proliferating guns in a populated area where there is law enforcement jeopardizes law enforcement because, when they come, they now can’t tell who’s shooting, and the — the — the — the shooting proliferates and accelerates.

And, in the end, that’s why there’s a substantial law enforcement interest in not having widespread carrying of guns in densely —

As you can see, NY’s laws are common among anti-gun legislators, that the people should rely on government to protect them, as she points out the transit police. While it may be a compelling argument to people who don’t like guns, it’s antithetical to the principles this country is founded on.

Justice Kavanaugh, took issue with her underlying premise that the state can and should be able to restrict guns in densely populated areas because that’s inherently dangerous, arguing:

Has that happened in those states? I mean, can you make a comparative judgment? Because it seems like before you impose more restrictions on individual citizens and infringe their constitutional rights based on this theory, you should have to show, well, in those other states that have shall issue regimes, actually, there is a lot more accidents, crime.

And I don’t see any real evidence of that.

~Justice Kavanaugh

He clearly felt her justification was based on dubious, if not an entirely fabricated premise. While she responded with generalities that she seemed to thing we should just accept as true, no data was provided.

The United States (The Biden Administration and their merry band of assholes) had an amici also argue, but again, Justice Roberts wasn’t having any of his bullshit. He fired this salvo:

John G. Roberts, Jr.

I mean, what is the appropriate analysis? I mean, you sort of — we — we, I think, generally don’t reinvent the wheel.

I mean, the first thing I would look to in answering this question is not the Statute of Northampton, it’s Heller, and Heller has gone through all this stuff and, obviously, in a somewhat different context, although that’s part of the debate, self-defense at home.

You know, this is different. But I still think that you have to begin with — with Heller and its recognition that the Second Amendment, you know, it — it has its own limitations, but it is to be interpreted the same way you’d interpret other provisions of the Constitution. And I wonder what your best answer is to the point that Mr. Clement makes in his brief, which is that, for example, if you’re asserting a claim to confront the witnesses against you under the Constitution, you don’t have to say I’ve got a special reason, this is why I think it’s important to my — my defense. The Constitution gives you that right. And if someone’s going to take it away from you, they have to justify it.

You don’t have to say when you’re looking for a permit to speak on a street corner or whatever that, you know, your speech is particularly important. So why do you have to show in this case, convince somebody, that you’re entitled to exercise your Second Amendment right?

Brian H. Fletcher

So let me start with the general question and then get to that specific point for Mr. Clement. As to the general question about Heller, we agree completely that the Court ought to apply the method from Heller, which we, like I think all the parties, take to be look to the text, history, and tradition of the Second Amendment right, and we’re applying that now to a somewhat different issue with the benefit of somewhat broader materials. Now, as to the question about why you have to have a showing of need, I think the problem with Mr. Clement’s formulation is that it assumes the conclusion. If you had a right, the Second Amendment conferred a right to carry around a weapon for possible self-defense just because an individual wants to have one available, then, obviously, you couldn’t take away that right or make it contingent upon a discretionary determination. But the whole question is whether the Second Amendment right to keep and bear arms confers that right to have a pistol with you for self-defense even absent a showing of demonstrated need.

John G. Roberts, Jr.

Well, I’m not sure that’s right.

I mean, you would — regardless of what the right is, it would be surprising to have it depend upon a permit system.

You can say that the right is limited in a particular way, just as First Amendment rights are limited, but the idea that you need a license to exercise the right, I think, is unusual in the context of the Bill of Rights.

A district court and the Second Circuit in New York, being sympathetic to New York’s tyrannical scheme dismissed NYSRA’s claims, but luckily for New Yorkers, SCOTUS think those courts are basically idiots.

In a 6:3 split partisan decision, where Breyer, Kagan, and Sotomayor dissented, arguing that states should have the necessary powers to reduce gun violence, even if it involves violating fundamental rights, Justice Thomas laid down the law. New York State’s law violates the 14th amendment (the one that guarantees equal protection and shit), denying some people their second amendment rights. He rightly points out, as was argued, no other right has this burden, so why is the second amendment special? Justice Alito added that a right is a right, whether you intend to lower murders by gun is fucking irrelevant.

Roberts and Kavanaugh agreed, but pointed out that background checks, mental health checks, and other checks to make sure someone is the type of person we agree shouldn’t carry are fine, but that has a foundation in that it’s a right until you prove you’re not someone who should be allowed to exercise that right, where as what NY did, was say you don’t have the right, until you prove you need it, and this shit just ain’t OK.

Hear oral arguments and/or read about the case here.