Will “must issue” become the constitutional law of the land for states and counties requiring permits to carry firearms? The Supreme Court heard oral arguments today on that issue in reviewing a challenge to a New York law that left issuance at the discretion of officials. If Josh Gerstein’s instincts are correct — and they seem supported by the exchanges he quotes — the “bear” part of the Second Amendment’s “keep and bear arms” looks headed for significant expansion:
The Supreme Court appears inclined to wipe out a series of gun control measures that require firearm owners to show a particular, unusual need to get a permit to carry a gun outside the home.
During arguments Wednesday on New York state’s strict gun laws, the high court’s conservative majority signaled that it is likely to rule that the constitutional right to keep and bear arms precludes states from insisting that individuals show “proper cause” before being licensed to carry a firearm for self-defense.
Most significantly, the skepticism over discretionary issuance came mostly from the two justices at the center of the court these days:
Justice Brett Kavanaugh said he was troubled that New York’s system allows officials “blanket discretion” to accept or reject a request for a permit. “That’s just not how we do constitutional rights,” Kavanaugh said.
Chief Justice John Roberts expressed similar reservations.
“You don’t have to say when you’re looking for a permit to speak on a street corner that your speech is particularly important,” Roberts said. “The idea you need a license to exercise the right, I think, is unusual in the context of the Bill of Rights.”
Caveats apply as always to the sometimes-fool’s errand of reading conclusions into the Socratic exercise of oral arguments at the Supreme Court. Gerstein’s analysis appears pretty firm in this case, however, especially with Kavanaugh and Roberts apparently on the same page. Roberts’ argument almost veers into a rationale for eliminating permits altogether, more into the constitutional carry policies already adopted by half of the states.
It seems unlikely that the court will use this case as a vehicle to strike down permits altogether, as plaintiffs aren’t actively seeking that kind of relief. They want the state to adopt a “must issue” policy that requires permits to be issued except where conditions explicitly prohibit it, ie, a felon whose civil rights have not been restored. Several states (including Minnesota) have “must issue” enshrined already in statute, but other states leave it up to the arbitrary discretion of sheriffs or other officials.
That troubled even Justice Elana Kagan, who might have been considered one of three justices expected to uphold New York’s discretionary approach:
“It seems completely intuitive there should be different gun regimes in New York than in Wyoming … but it’s a hard thing to match with our notion of constitutional rights generally,” Kagan said. “We would never really dream of doing that for the First Amendment.”
No, we most certainly wouldn’t, and that is the better point and one that might provide a fulcrum for a broader majority focusing on the narrower point. Even if one allows for states to regulate the exercise of the Second Amendment, that regulation should apply equally and without arbitrary or capricious denial.
It’s likely to be a few months before we get the answer to what the vote will be. The outcome, however, looks pretty solid already … at least if we adopt the fool’s-errand approach. It costs nothing to feel optimistic, though.