U.S. Supreme Court to Decide Major Second Amendment Case

The U. S. Supreme Court agreed on April 26, 2021, to take up a major Second Amendment Case that affects all who carry a gun concealed. The case is the New York State Rifle and Pistol Association, Inc. and plaintiffs Robert Nash and Brandon Koch versus Keith M. Corlett, in his official capacity as Superintendent of New York State Police.

Brief Case Summary

Robert Nash and Brandon Koch each applied for a New York concealed carry firearm license for the purpose of self-defense. Both applications were denied finding that neither individual met the “proper cause” standard required by New York law in order to issue a license for general self-defense. New York courts have defined “proper cause” as requiring the applicant to “demonstrate a special need for self-protection distinguishable from that of the general community.”

The case seeks to overturn a New York state policy that requires people applying for handgun permits/licenses to demonstrate in-depth that they have a serious, justifiable special need to carry concealed handguns in public. The concealed carry permit application in New York is very strict. It involves about 50 pages because the applicant must provide and know much information about criminal history, definitions of weapons and provide concrete proof to satisfy the justifiable “special need” test to get a carry permit. This in-depth extra, special justification for providing for an individual’s self-defense seems completely arbitrary and outrageously absurd to many.

POINT: It is time for the U.S. Supreme Court to rule on the application of the Second Amendment to concealed carry of a firearm outside the home and in public. The Supreme Court will begin hearing cases for the term on October 4, 2021.

Must Demonstrate “Proper Cause,” “Good” Reason, or “Justifiable” Need to Carry

Recognize that nearly every state places some restrictions on where and how concealed firearms may be carried, such as restrictions on carrying in bars, schools, hospitals, airports, courthouses, banks, backpacks, and at public sporting events. For example, New York, New Jersey, Massachusetts, and California do not recognize carry permits and licenses from any other state.

However, at this time, seven states require a permit or license to demonstrate “good” or “proper” cause or a “justifiable” need to carry a concealed weapon. Special proof must be provided. But what if the very nature of your environment or carry location or area holds a strong probability of danger, but without an individual attack occurring yet to yourself? There is no special, exceptional case now. An individual simply wants to be protected and be ready with his or her own self-defense by carrying a handgun… just in case? Massachusetts requires the applicant to show a “good reason to fear injury to his or her person or property.” Hawaii grants licenses to carry concealed weapons in an “exceptional case when an applicant shows reason to fear injury to the applicant’s person or property.”

U.S. Supreme Court Has Ruled Americans Have Gun Ownership Rights

In the June 26, 2008 landmark Heller Case, the U.S. Supreme Court has ruled that law-abiding Americans have a Constitutional right to gun ownership for self-defense and to have guns in their homes. The Court held that the Second Amendment guarantees an individual’s right to possess firearms independent of service in a state militia and use firearms for lawful purposes, including self-defense within the home. Some concealed weapons prohibitions have been upheld under the Amendment or state analogs. Appeals courts rulings have been very divided on the question of application of the Second Amendment to concealed firearms in public.

The McDonald 2010 case ruled that the Second Amendment decision also applies to states and local governments and shall not be infringed. It is applicable to the states through the 14th Amendment’s Due Process Clause. The Second Amendment guarantees an individual right to possess firearms and use them for lawful purposes, which applies to states.

POINT: The Heller Supreme Court decision ruled that Americans have the right to gun ownership. The McDonald Supreme Court decision ruled that the right to bear arms is a fundamental right that states should not be able to infringe.

What was left unclarified by the Heller and McDonald cases was:

Does the Second Amendment protect the right to carry a gun outside the home?

New York Military Veteran Denied Carry Permit

So why should the carry process be so arduous, expensive, and time-consuming? Some argue that it is even unconstitutional, as it is making it virtually impossible for several to exercise their Second Amendment rights in certain states. In New York, a military veteran was denied a Permit to Carry and was interviewed by John Stossel of Fox Business in 2016, according to Town Hall Editor Matt Vespa in an article titled, “Fox Business’ John Stossel Tried To Get A New York Gun Permit­–It Turned Out Poorly.” The veteran, Robert Martinez, said even though a man was beaten to death outside his same New York apartment area, he was notified after several months that his New York carry permit was denied due to lack of “proper cause.”

New Jersey Handgun Purchase and Concealed Carry Permit Application

New Jersey requires that you get a Permit to Purchase a handgun and to buy ammunition. A Permit to Purchase a handgun or ammo is valid for only 90 days, and you can buy only one handgun. New Jersey is considered a “May Issue” state, meaning that law enforcement has more discretion, if not total discretion, in deciding whether to issue a permit or not.

The New Jersey Application for Concealed Carry must include a written certification showing that you have a “justifiable need” to carry a handgun and can be “evidenced by specific threats or previous attacks which demonstrate a special danger” to your life that “cannot be avoided by means other than by issuance of a permit to carry.” Of course, this is subjective.

New Jersey requires that three “reputable persons” who have known the applicant for at least three years certify that the applicant is of “good moral character and behavior.”

California Concealed Carry Permit Application

Law enforcement agencies reserve almost exclusive authority to issue or deny California Concealed Carry permits, so courts will not overturn their decision to deny someone a permit unless the decision is “arbitrary, capricious, or entirely lacking in evidentiary support.” In the classic California Peruta case in 2016, the 9th Circuit Court of Appeals ruled that the “good cause” requirement for a concealed carry permit was constitutional, reasoning that the Second Amendment does not apply to concealed firearms. “Good cause” was explained to mean that the applicant must prove that “a clear and present danger exists for you or your immediate family, and carrying a concealed weapon would mitigate that danger.” Further, the Appeals Court said in San Diego that concern for one’s safety, by itself, was not enough to constitute “good cause.” An applicant must show that there is a set of non-mainstream circumstances causing the individual to be placed in harm’s way.

One of my students from California said that he was waiting a long time for a decision on his application to carry to deliver his daily business receipts to the bank and was concerned about his personal protection. He said he waited for almost two years and finally got a decision that denied his permit because of a lack of non-mainstream circumstances and dangers for justification. His background check was delayed, and there were concerns about his required Firearm Safety Certificate. This is difficult for this author and instructor to fathom.

Issuing Authority Is Not Required to Issue Carry Permit

Of the 31 states that generally require a Concealed Carry Weapon permit or license in order to carry concealed weapons in public at this time, seven states have “May Issue” laws. A ruling in this New York case will affect similar laws, primarily in other states like California, Massachusetts, Maryland, New Jersey, and Hawaii. These laws grant the issuing authority wide discretion to deny a carry permit or license if, for example, the authority believes the applicant lacks “good” character, lacks a “good” reason for carrying a weapon in public, or does not have an “exceptional” case for carrying. The Gifford’s Law Center says, “even if the general requirements are met, the official is not required to issue the permit.” Subjective!

POINT: “May Issue” carry is very subjective and open to interpretation, with no standard or universal definition and application of “good,” “exceptional,” or “Justifiable” cause or need.

Many Legal Documents Filed

A Writ of Certiorari has been filed in the Corlett case, which orders a lower court to deliver its case records to the U.S. Supreme Court for its review. Many interested organizations, states, and individuals have filed Amicus Curiae briefs. These briefs are persuasive legal documents filed while a case is on appeal by parties interested in the outcome but who are not directly a party to the lawsuit. When an entity files a brief, they can express their views and bring facts and arguments directly to the Supreme Court. Since the case’s resolution could affect how its members or associates exercise their rights to keep and bear arms, Amicus Curiae briefs are an important part of the case.

This Corlett lawsuit has at least 50 Amicus Curiae briefs filed by at least 22 organizations and many states and individuals through July 22, 2021. And more will follow before the court makes a decision. New York is among approximately seven states at this time that limit who has the right to carry a firearm in public. In addition to 25 U.S. Senators, 26 States Attorneys General, and many interested individuals and organizations who filed, just some organizations who have filed these briefs by mid-July include:

Amicus Curiae Briefs Filed

• A Girl & A Gun Shooting League
• Alabama Center for Law and Liberty
• American Constitutional Rights Union
• Asian-Pacific American Gun Owners Association
• Association of New Jersey Rifle & Pistol Clubs, Inc.
• Bay Colony Weapons Collectors, Inc.
• Black Attorneys of Legal Aid
• Black Guns Matter & Armed Equality
• Cato Institute
• Citizens Committee for the Right to Keep and Bear Arms
• Claremont Institute’s Center for Constitutional & Jurisprudence
• Crime Prevention Research Center
• Gun Owners of America
• Independent Women’s Law Center
• Italo-American Jurists & Attorneys
• Jews for the Preservation of Firearms Ownership
• Mountain States Legal Foundation’s Center to Keep and Bear Arms
• NRA Civil Rights Defense Fund
• National Afriican-American Gun Association, Inc.
• National Shooting Sports Foundation
• New Jersey Rifle & Pistol Clubs, Inc.
• Professors of Second Amendment Law
• The Buckeye Institute
• Second Amendment Foundation
• Law Enforcement Groups (several)
• The DC Project
• Operation Blazing Sword

The Legal Issue

The issue is whether the state of New York’s denial of the petitioners’ applications for concealed carry licenses for self-defense violated the Second Amendment. Nash and Koch’s license applications for a New York concealed carry license were denied because the applicants did not show an “actual and articulable” need to carry.

Conclusions

The U.S. Supreme Court confirmed in 2008 that the Second Amendment guarantees an individual right to possess firearms and use them for lawful purposes.

The McDonald v. Chicago 2010 Supreme Court decision ruled that the right to bear arms is a fundamental right that states should not be able to infringe. It applies to the states through the 14th Amendment’s Due Process Clause.

Second Amendment rights are vital and need to be supported, available, and restored to all individuals. Those involved in the fight to restore Second Amendment rights are familiar with the costs: Innocent lives have been destroyed, many lives lost, several years in prison, much property lost, many children lost, marriages destroyed, all because governments have been unwilling to recognize the exercise of Second Amendment rights. Courts have been largely unwilling to enforce those rights regarding concealed carry.

As in the current New York State Rifle and Pistol Association, Inc. versus Keith M. Corlett case, “May Issue” is very subjective and open to interpretation, with no standard or universal definition and application of “good,” “exceptional,” or “Justifiable” cause or need for issuance of a concealed carry permit or license. Some say it is not even necessary to even go through the process and possess such a permit. The Supreme Court ruling on this Corlett case will be a major clarification for obtaining a concealed carry handgun license or permit among all states and localities and our Second Amendment rights. Or, maybe there will be a decision that no carry permit or license is even necessary due to inherent Constitutional rights.

Continued success and safety!

* This personal opinion article is meant for general information & educational purposes only, and the author strongly recommends that you seek counsel from an attorney for legal advice and your own personal certified weapons trainer for proper guidance about shooting & using YOUR firearms, self-defense, and concealed carry. It should not be relied upon as accurate for all shooters & the author assumes no responsibility for anyone’s use of the information and shall not be liable for any improper or incorrect use of the information or any damages or injuries incurred whatsoever.

© 2021 Col Benjamin Findley. All Rights Reserved. This article may not be reprinted or reproduced in whole or in part by mechanical means, photocopying, electronic reproduction, scanning, or any other means without prior written permission. For copyright information, contact Col Ben Findley at ColBFF@gmail.com.