The Supreme Court Briefs That Dismantle New York’s Public Carry Ban

By Cody J. Wisniewki

Sometimes you feel overwhelmed in a good way.

Last week brought an avalanche of amicus briefs in the major Supreme Court gun rights case of New York State Rifle & Pistol Association v. Bruen, which is expected to be the Court’s most important Second Amendment case since the Heller and McDonald decisions more than a decade ago.

Gun control advocates first began getting nervous about this case in the spring, when the Supreme Court agreed to hear the merits of the case under its original name of NYSRPA v. Corlett.

Nearly four dozen briefs were filed in support of NYSRPA’s challenge to New York’s unconstitutional gun control laws. Contributors are, literally and figuratively, all over the map — Asian and African American groups, academics, dozens of states, and many more congressmen and senators.

Never let anyone tell you that the movement for gun rights is marginal, or confined to one demographic.

As you may recall, the NYSRPA case concerns the state of New York’s ban on bearing arms outside the home — with narrow exception for those who can show “proper cause.” This means individuals must prove to New York state officials that they are not merely ordinary citizens concerned for their safety, since that is not a good enough reason for a permit in New York’s view.

New York’s licensing scheme is a complete inversion of the Second Amendment: taking the people’s natural, constitutionally protected right, and turning it into an exclusive privilege for a select few.

A correct application of Heller and McDonald would have quickly put an end to such a law. Instead, many lower courts have twisted a portion of the Heller opinion to support the idea that firearms rights can still be radically curtailed outside the home.

In terms of scholarship and argumentation, there are countless ways to dismantle a disarmament scheme like New York’s. Our movement rose to the occasion last week, with the barrage of briefs supporting NYSRPA and the rights of all New Yorkers — and all Americans.

Two of my favorites came from professors of Second Amendment Law, as well as from a group led by public defenders and the Black Attorneys of Legal Aid.

The professors’ brief is an excellent historical survey. They show that the public carrying of arms is a deeply rooted American tradition. It was protected under English law, and intentionally given even broader protection under the U.S. Constitution. Anglo-American history does not support the gun control agenda.

In today’s highly charged political climate, many people would not expect equally strong firearms advocacy from the Black Attorneys of Legal Aid and several groups of public defense attorneys. But for those of you paying close attention, this support is obvious—especially given the racist roots of gun control, and the ongoing harm it does to poor and diverse populations.

Their brief brings attention to a tragic reality: people of all backgrounds are often detained and threatened by New York police, jailed for long periods, and branded as “violent felons” for life, merely for exercising their constitutionally protected right to bear arms.

My own organization, MSLF’s Center to Keep and Bear Arms, also weighed in on NYSRPA. The Center’s brief focused on taking down a historical misconception put forth by gun control activists: the idea that gun laws in the early northern U.S. (often called the “Massachusetts model”) offer support for modern laws like New York’s, broadly restricting public carry.

In reality, research demonstrates that while restrictions were occasionally placed on some individual public carriers who were seen as breaching the peace, these restrictions were only applied in an individualized manner, and were the exception—while the right to carry was the rule.

There is good reason to hope that the Supreme Court will uphold that right after it concludes briefing and hears oral argument on NYSRPA in the upcoming term, likely in November, 2021.

After all, there is simply no solid constitutional argument against what the NYSRPA plaintiffs — citing the D.C. Circuit — argued in the District Court:

The law-abiding citizen’s right to bear common arms must enable the typical citizen to carry a gun.

Cody J. Wisniewski (@TheWizardofLawz) is the Director of Mountain States Legal Foundation’s Center to Keep and Bear Arms. He primarily focuses on Second Amendment issues but is happy so long as he is reminding the government of its enumerated powers and constitutional restrictions.

To learn more about the Center to Keep and Bear Arms’ work and support their fight for your natural right to self-defense—from both man and tyranny—visit www.mslegal.org/2A and donate today!

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