Countdown To Hope- Supreme Court Watch
Countdown To Hope – Watch Page for Supreme Court Ruling on NYSRPA v. Bruen
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The Supreme Court of the United States is currently considering the first Second Amendment case since District of Columbia v. Heller was decided more than 14 years ago. Heller is the quintessential case that stated Second Amendment rights are individual rights. Since the decision in Heller, courts in states that are less friendly towards gun rights have worked tirelessly to develop jurisprudence that would view Second Amendment cases through the lens of a lower level of scrutiny than what other fundamental rights are typically viewed under.
The hope in watching the Supreme Court consider New York State Rifle & Pistol Association v. Bruen (“NYSRPA”) is that the high court will finally put an end to the division within the federal circuits and rule that Second Amendment cases deserve the highest level of scrutiny with considering whether the government has the right to infringe upon a fundamental right.
Strict Scrutiny is the highest level of scrutiny and the most difficult for a government action to overcome. Strict Scrutiny calls for the government to have a compelling government interest and that the law must be narrowly tailored to meet that interest. In other words, the government must have a very specific reason for violating a fundamental right and it must be done so in a way that violates that right as little as possible.
Intermediate Scrutiny is a step lower than strict scrutiny and give the government a little more leeway in violation of fundamental rights by the government having the burden to prove that it has an important government interest and the action must only be substantially related to the government’s interest. It is usually easier for the government to prove that it has an “important interest” and this level of scrutiny makes it more difficult for the group or person fighting for the rights to prove that the government is over-stepping their authority.
Rational Basis is the lowest bar for the government to meet and asks the question whether the law has a reasonable connection to achieving a legitimate constitutional objective.
There are currently many cases that are waiting in line in courts across the country for an opinion from the NYSRPA v. Bruen case. An updated list with links is listed here in this link SCOTUS Gun Watch – Week of 3/7/22 | Duke Center for Firearms Law
“In New York State Rifle, the Court Should Look to Text, History, and Tradition,” SCOTUSblog, Oct. 31, 2021.
“New York Gun Rights Case Before Supreme Court with Massive Consequences,” The Hill, July 23, 2021.
“The Right to Bear Arms in Historical Context: Founding Realities Refute New York’s Arguments Supporting Its Gun Carry Ban,” The Volokh Conspiracy, Oct. 15, 2021.
“The Sensitive Places Issue in New York Rifle,”The Volokh Conspiracy, Nov. 8, 2021 (with David Kopel).
“Supreme Court’s Latest Second Amendment Case Isn’t about Race, It’s about Rights,” The Washington Times, Oct. 25, 2021.
“To Bear Arms for Self-Defense: A ‘Right of the People’ or a Privilege of the Few? Part 1”, Federalist Society Review Vol. 21 (Mar. 23, 2020).
“To Bear Arms for Self-Defense: A ‘Right of the People’ or a Privilege of the Few? Part 2”, Federalist Society Review Vol. 21 (Mar. 31, 2020).
“Faux Histoire of the Right to Bear Arms: Young v. Hawaii (9th Cir. 2021),” Independent Institute (July 13, 2021).
Other Key Cases that have impacts on Second Amendment jurisprudence over the years:
District of Columbia v. Heller, 554 U.S. 570 (2008). The quintessential case that stated Second Amendment rights are individual rights.
Heller determined whether the possession of operable weapons in the home fell within “the historical understanding of the scope of the [Second Amendment] right.” Id. at 625, 128 S.Ct. 2783.
“Heller determined that it (the D.C. law) was unconstitutional “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Id. at 628, 128 S.Ct. 2783.”
While Heller did not specify the appropriate level of scrutiny for Second Amendment claims, it nevertheless confirmed that rational basis review is not appropriate, explaining that “[i]f all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.” Id. at 628 n. 27, 128 S.Ct. 2783. (Many believing that is was understood by the court that a higher level of scrutiny should and would be used in Second Amendment cases and did not need definition. Now, more than 10 years later, courts still argue about what level of scrutiny should be used in Second Amendment cases).
A law that imposes such a severe restriction on the core right of self-defense that it “amounts to a destruction of the [Second Amendment] right,” is unconstitutional under any level of scrutiny. Heller, 554 U.S. at 629, 128 S.Ct. 2783 (internal quotations omitted).
Having to retrieve handguns from locked containers or removing trigger locks makes it more difficult “for citizens to use them for the core lawful purpose of self-defense” in the home. Heller, 554 U.S. at 630, 128 S.Ct. 2783.
Jackson v. City and County of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014). (On appeal, this case was denied from a Motion for Summary Judgement and not based upon the merits of the case. Gun control advocates like to cite to this denial as one that has some substance, but the court never considered the constitutional arguments).
Duncan v. Bonta– Currently seeking certiorari with the Supreme Court. This case argues that the state of California’s ban on the possession, transfer, purchase, and sale of magazines holding over 10 rounds of ammunition is unconstitutional.
Plaintiffs won at the District Court level and at the Ninth Circuit Court of Appeals. The state then requested en banc review and the Ninth Circuit en banc panel over-turned not only the lower court, but their colleagues on the Ninth Circuit. Plaintiffs have appealed to be heard by the Supreme Court. *En banc review is very rare in other federal circuit courts, but the Ninth Circuit (the most overturned federal court in the country) has not turned down a chance to review a Second Amendment case in decades.
“I’m not a prophet, but since this panel just enforced the Second Amendment, and this is the Ninth Circuit, this ruling will almost certainly face an en banc challenge. This prediction follows from the fact that this is always what happens when a three-judge panel upholds the Second Amendment in this circuit. See, e.g., Young v. Hawaii, 896 F.3d 1044, 1048 (9th Cir. 2018), on reh’g en banc, 992 F.3d 765 (9th Cir. 2021) (en banc) (overturning the three-judge panel); Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1147 (9th Cir. 2014), on reh’g en banc, 824 F.3d 919 (9th Cir. 2016) (en banc) (same); Duncan v. Becerra, 970 F.3d 1133, 1138 (9th Cir. 2020), on reh’g en banc sub nom. Duncan v. Bonta, 19 F.4th 1087 (9th Cir. 2021) (en banc) (same). Our circuit has ruled on dozens of Second Amendment cases, and without fail has ultimately blessed every gun regulation challenged, so we shouldn’t expect anything less here. See Duncan, 19 F.4th at 1165 (VanDyke, J., dissenting).”
McDougall v. County of Ventura. Plaintiffs challenge the County of Ventura defendants’ orders and actions (1) preventing people from buying guns and ammunition and (2) forced closures of firearm and ammunition retailers and shooting ranges upon threat of prosecution, that violate the Second and Fourteenth Amendments.
Mai v. United States, 952 F.3d 1106, 1113 (9th Cir. 2020); see also Jackson v. City and County of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014). “We have adopted a two-step inquiry for assessing whether a law violates the Second Amendment.” “This test (1) asks whether the challenged law burdens conduct protected by the Second Amendment and (2) if so, directs courts to apply an appropriate level of scrutiny.” Mai, 952 F.3d at 1113 (citation and internal quotation marks omitted).
“Despite Washington State’s affirmation that Petitioner is part of “the people” protected by the Second Amendment, the Ninth Circuit blocks his
exercise of his Second Amendment rights. And, because federal courts across the United States blatantly ignore this Court’s Second Amendment
holdings, treating “the true palladium of liberty” like a “constitutional orphan,” this Court needs to grant the petition and restore order.
Currently being held at the Supreme Court after submitting a request for certiorari in 2021. The high court is expected to rule on NYSRPA v. Bruen before considering this case. Like the New York statute at issue in NYSRPA, Hawaii will not issue a permit to carry a firearm to an ordinary citizen for
purposes of self-defense. Like the petitioners in NYSRPA, petitioner’s application for a carry permit (open or concealed) was denied because self-defense is categorically an insufficient reason.
Regulatory Issues with CCW in California
Many speculate that a positive ruling for the Second Amendment in the NYSRPA case will mean that California’s concealed carry laws will be up for dispute.
Currently, California state law requires a “good cause statement” in order to obtain a CCW. This is interpreted differently depending which jurisdiction the applicant is located in. Some Sheriffs are very strict with their definition of “good cause” and harshly limit the number of CCWs issued. Other Sheriffs are more liberal with this definition and note that a basic right to defend the person and others is a “good cause” worth of issuing a CCW.
If the Supreme Court decides in favor of the gun owners and against New York, we anticipate that there will be changes to the current state requirements. Although, changing the law is not really necessary as long as Sheriffs use a liberal interpretation that allows a citizen to obtain a CCW.
37 out of 58 counties in California already would be in line with a NYSRPA ruling in favor of plaintiffs. Those not issuing CCWs, or who are more restrictive, are in the minority.
Regarding the issuance of licenses to carry concealed weapons, California law lists the requirements as follows:
“(a) When a person applies for a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person, the sheriff of a county may issue a license to that person upon proof of all of the following:
(1) The applicant is of good moral character.
(2) Good cause exists for issuance of the license.
(3) The applicant is a resident of the county or a city within the county, or the applicant’s principal place of employment or business is in the county or a city within the county and the applicant spends a substantial period of time in that place of employment or business.
(4) The applicant has completed a course of training as described in Section 26165.”
(Pen. Code, § 26150, subd. (a); see also Pen. Code, § 26155, subd. (a) [referring to the same requirements, but for when a City Police Department handles permit issuance].)