The writing seems to be on the wall that states which apply subjective or overly restrictive standards for issuing concealed carry licenses are violating the Constitution.
Thirteen years after the Supreme Court held in District of Colombia v. Heller that the Second Amendment creates a private right to keep and bear arms within one’s home for self-defense and eleven years since the Court held in MacDonald v. Chicago that the Second Amendment applies to the states, the next step in framing the contours of the Second Amendment appears imminent: Namely, answering whether a person may also keep and bear arms outside of the home. Or to put the issue in the legalese used before the Supreme Court the other day in New York State Rifle & Pistol Association Inc. v. Bruen,
Whether the state of New York’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.
First, some background relevant to this issue on the difference between states with “shall issue” laws and those with “may issue” laws. I am fortunate to live in a southern state where the law is explicit that, if I apply for a concealed carry license and pass the elements of a federal firearms background check per 18 U.S. Code § 922(g), then the state police “shall issue” me a concealed carry license. I need not jump through any further hoops and the state has no discretion to deny me a concealed carry license.
I was surprised recently to learn that 41 of the 50 states are the same, with “shall issue” laws. Vermont has no licensing laws and never has. Only eight states, including New York, are “may issue” states where, even if the applicant passes the federal firearms background check, the state may choose to deny a concealed carry license at its subjective discretion. Not surprisingly, all of those states are Democrat bastions: California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and New York. And not surprisingly, it is exceedingly rare for those states to approve a concealed carry application.
The expectation of people who have been following the New York State Rifle & Pistol Association Inc. v. Bruen case is that the Supreme Court will rule that states may not subjectively deny applications for concealed carry of weapons. Oral arguments were the other day and some of the arguments that the progressive left is raising to support their denial of Second Amendment rights are just stunning.
The most ludicrous of all the arguments had zero grounding in the law, the judicial power of the court, or reality. It came from Justice Breyer, a progressive last heard on the Second Amendment in his dissent to Heller, when he argued that the Second Amendment created no right in individuals to keep and bear arms, but only allowed states to arm members of its state militia. This from Redstate:
Justice Stephen G. Breyer pressed the attorney for the two gun owners about how the court could craft guidelines that would not lead to “gun-related chaos.”
Breyer suggested that even people of “good moral character” who had consumed a lot of alcohol at a football or soccer game could end up getting “pretty angry at each other.”
If those people were carrying concealed weapons at sporting events, he said, statistics show that “a lot of people end up dead.”
That may be the single most ludicrous thing I’ve heard come out of the mouth of a Supreme Court Justice since the execrable Justice Kagan lambasted plaintiffs for “weaponizing” the First Amendment with a lawsuit to vindicate their First Amendment rights. In the first instance, Justice Breyer, like all Supreme Court Justices, is not a legislator. He does not get to “craft” positive law simply by calling them guidelines. His only power per Article III of the Constitution is judicial — to rule on the legality of states subjectively denying concealed carry permits in light of the Second Amendment. Two, this argument that “a lot of people end up dead” is so far removed from reality, it is mindboggling.
Sports have been ongoing in this country for its entire 246-year existence. During that time, people have been consuming alcohol during the events, and some people have been armed. If there was the least problem, ever, with legal guns and concealed carry holders, we would know it beyond the shadow of any doubt. It would have made the papers — in headlines stretching from coast to coast.
To put this in perspective, about 44% of the population of the U.S., roughly 146.5 million people, owns or lives in a household with a firearm. For the record, I am one of them. More important, one of about 19 million Americans has a concealed carry license, and I am one of them as well. My carry weapon is a .45 caliber Springfield Armory XDe. I carry it everywhere and have been fortunate in never having been put in a situation where, in defense of myself or others, I felt it necessary to take the weapon from its holster. I regularly attend events and places where alcohol is sold, but do not consume alcohol when I am armed as that violates the laws that apply to me as an armed concealed carry permit holder. I doubt that the vast majority of concealed carry holders have had any different experiences.
Justice Alito made the most intelligent comments at the oral argument. This also from Redstate:
Justice Samuel A. Alito Jr. raised the issue of everyday self-defense on the streets of New York. “Could I explore what that means for ordinary law-abiding citizens who feel they need to carry a firearm for self-defense?” Alito asked.
He raised the issue of people who work late in Manhattan, may have to walk through a high- crime area to get home and are “scared to death.” He queried: “They do not get licenses, is that right?”
“That is, in general, right,” New York Solicitor General Barbara Underwood said. “If there’s nothing particular to them.”
“How is that consistent,” Alito responded, “with the core right to self-defense, which is protected by the Second Amendment?”
Underwood answered, “Because the core right to self-defense doesn’t, as this court said, doesn’t allow for all to be armed for all possible confrontations in all places.”
″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?” Alito asked. “All these people with illegal guns, they’re on the subway, they’re walking around the streets. But the ordinary, hard-working, law-abiding people I mentioned, no, they can’t be armed.”
Frankly, from a practical standpoint, I know of no justification for states to burden the Second Amendment rights of law-abiding citizens to keep and bear arms. As Justice Kavanaugh pointed out in the oral argument, there is no evidence that the states with “shall issue” laws have “a lot more accidents [or] crime. . . .”
So that leaves the question, is there a legal basis for burdening the Second Amendment rights of law-abiding citizens? This is an “originalist” question, and it is actually two-fold. One, is there a history in our country at or near the passage of our Bill of Rights in 1791 of limiting the right to bear arms in public? Two, since the right to bear arms comes to us modeled on the English right set forth in their Bill of Rights of 1689, did the English have laws against citizens going about armed?
The legal arguments in support of allowing states to subjectively deny the request of law-abiding citizens concealed carry were made in some detail in an Amicus Brief from Michael Bloomberg’s anti-Second Amendment group, Everytown for Gun Safety. An expert in this area of law, David Kopell, responds to the brief at The Volokh Conspiracy, showing that Everytown’s citations of U.S. law at about the time of the passage of the Bill of Rights actually support “shall issue” laws, not state discretion. Embarrassing that. It makes for an interesting read.
The most interesting part of Kopell’s response references the argument that British law, by the 1328 Statute of Northampton, allowed the state an absolute right to prevent people from bearing arms in public. Those opposed say that the right in the statute is not absolute and that the state could only prosecute if they can show that the person went out armed with the intention of terrorizing people or committing a crime. The statute is anything but clear, and its application in the centuries afterward is likewise ambiguous. This from Kopell:
The Statute of Northampton
Everytown argues that the 1328 Statute of Northampton was a broad prohibition of carrying of arms, and that it was carried over to colonial America and the Early Republic, becoming the foundation of later laws that also tightly restricted arms carrying.
Petitioners say that the Statute was authoritatively interpreted to apply only to carrying with bad intent. They cite the case reports from Sir John Knight’s Case (1686), a sensational political trial of a personal enemy of the king. Petitioners also point out that the presiding judge, the Chief Justice of King’s Bench, said that the Statute of Northampton was “almost gone in desuetudinem.” In modern English, a statute in “desuetude” has become unenforceable due to long nonenforcement.
The Everytown brief responds:
And contrary to the petitioners’ assertion (at 5) that the statute had “almost gone in desuetudinem”… the prohibition continued to be enforced long after his acquittal, see Rex v. Edward Mullins, Middlesex Sessions, (K.B. 1751) (reporting 1751 conviction)…
The Mullins case does show the Statute that was “almost” in desuetude as of 1686 was still hanging on in 1751. Mullins also shows how the Statute was enforced: against someone carrying a weapon with bad intent—assault with a cutlass. Mullins was convicted of “making an Assault upon one John Jew,” and also convicted for “going Armed with a Cutlass Contrary to the Statute.” Each crime carried its own punishment. (He was convicted in the Middlesex County’s court of Oyez and Terminer, and court of General Quarter Sessions. Each had jurisdiction over different crimes.)
For proof that the Statute of Northampton never fully went into desuetude, Everytown could also have cited a twentieth century case. King v. Smith, 2 Irish Rep. 190 (King’s Bench 1914). By far the most thorough judicial analysis of the Statute, the opinion was written by Chief Baron Christopher Palles, widely considered the greatest Irish judge of his time, and perhaps of all time.
Surveying all prior sources, C.B. Palles observed, “there is but little judicial authority, although there is much in relation to it in text-books.” The indictment was defective, said the court, because it “omits two essential elements of the offence—(1) That the going armed was without lawful occasion; and (2) that the act was in terrorem populi.” (to the terror of the people).
The judge continued: “I find that this construction has, from the earliest times, been put upon the statute by text-writers; and, indeed, there is judicial authority in support of it.”
If C.B. Palles was correct about the Statute of Northampton, then Everytown is wrong. According to Everytown:
the phrase “in terrorem populi Regis” described the effect of carrying a firearm in public. It did not signal an additional, atextual requirement of an “intent to terrorize.”
Chief Baron Palles did rule that “in terrorem populi” was an “element.” Not a mere effect.
In the twenty-first century, the Statute of Northampton is getting more attention than ever before. Repealed by Parliament in 1967, the Statute is much discussed today, almost exclusively by advocates on either side of the American gun control issue. Several American judges have noted that the United Kingdom’s legal history on the matter is not easy for modern judges to resolve. It could be helpful to consider the opinion of a preeminent judge whose learned opinion was written with no regard for American questions.
The Northampton argument is probably the strongest argument the gun-grabbers have, and it is a weak reed at best. I cannot see the Supreme Court doing anything other than holding New York’s “may issue” law unconstitutional.