“Show Good Cause”

Apr 28, 2021

The Supreme Court’s agreeing to hear arguments in a Second Amendment case for the first time in a decade has brought strong reactions from both sides of “the gun issue.”

Anti-gun groups and politicians including New York Governor Andrew Cuomo, say a ruling against New York’s requirements for a concealed carry permit would turn the streets of America’s cities into “the N.R.A.’s dream of a society where everyone is terrified of each other and armed to the teeth…”

It’s some overblown rhetoric, but a clear demonstration that the argument for a requirement that law-abiding citizens prove to authorities that they have a good reason do do so hinges on the authorities ability to decide who gets a permit or not.

Using an admittedly moving target of “good reason” the authorities are essentially free to grant- or deny- permission. As a result, only a relative handful of New Yorkers have concealed carry permits.

The prohibition, however, hasn’t done anything to prevent crimes committed with firearms. Criminals, by definition, don’t care about prohibitions.

Yesterday’s announcement of the decision to hear the first Second Amendment case since McDonald v. Chicago is important as some lower federal courts have continued to agree that placing requirements on the right to carry a firearm outside the home is reasonable, not a restriction on the right enumerated in the Second Amendment. Others have disagreed. One of the Supreme Court’s most important duties is to clarify issues where the lower courts differ in their interpretations of the true meaning of laws.

The Supreme Court will decide that by hearing the New York RIfle & Pistol Association’s assertion that forcing applicants show “proper cause” in order to carry guns outside their homes is unreasonable. As their claim clearly states, it’s a requirement that “makes it virtually impossible for a law-abiding citizen to obtain a license.”

The high court has limited the argument to is this single point: “whether the state’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”

While it’s not unusual for the court to focus arguments, this limitation could indicate Chief Justice Roberts’ continued desire to limit the impact of any ruling on the Second Amendment.

But this limitation is significant because New York’s requirements have been in place for more than 100 years. It has also been used as the foundation on which other states, including California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island, have based their own restrictions against concealed carry.

Should the New York law fail to meet the Supreme Court’s test of “reasonableness” it is “reasonable” to expect these states to face similar challenges.

The NRA Institute for Legislative Action’s Jason Ouiment called the requirement “one of the most critical Second Amendment issues….our Second Amendment right to defend ourselves is fundamental and doesn’t vanish when we leave our homes.”

If the Supreme Court agrees, it could have an instant impact by creating that overarching legal opinion. The Supreme Court, after all, is the supreme court

Their ruling will have an impact on some lower court findings. In March, the Ninth Circuit Court of Appeals upheld Hawaii’s restrictive regulations. Others struck down similarly restrictive regulations in Illinois and the District of Columbia.

At least one of those rulings will be in peril no matter how the court rules.

Arguing against the Supreme Court hearing the case, New York failed to convince the justices that requiring an “actual and articulable” reason for carrying a gun made it somehow less restrictive than those regulations struck down in Illinois and the District of Columbia.

The key point seems simple on the surface: does the state limiting firearms to the home infringe on the rights of “average” citizens.

As Robert Nash and Brendan Koch, the New Yorkers whose denial of unrestricted licenses by the state of New York argued in their petition: “The Second Amendment does not exist to protect only the rights of the happy few who distinguish themselves from the body of ‘the people’ through some ‘proper cause.’ To the contrary, the Second Amendment exists to protect the rights of all the people.”

New York, however, argues their requirements are reasonable, as both Nash and Koch were granted “restricted licenses” allowing them to carry for “non-specific needs” - including hunting, target shooting or employment.

The duo, the New York State Rifle & Pistol Association and other Second Amendment groups, disagree.

In October, the Supreme Court will listen as both sides make their arguments.

The justices won’t be the only people paying close attention. But theirs will be the only opinions that really matter.

We’ll keep you posted.

— Jim Shepherd