MARY REICHARD, CO-HOST: The reality of the streets in this country comes into contact with the legal theory of the Second Amendment every single day.
MR: Gun violence makes the national news everyday in this country. Rising crime creates fear, and that leads to law abiding citizens looking for ways to protect themselves. Take for example Rennsalaer County New York where crime is on the rise.
MR: Madmen on the loose. Criminals destroying the sense of safety required for a functioning civil society. People who want to live their lives in peace.
On the flip side, and reported less often… armed citizens prepared to take down would-be killers.
MONTAGE: “I just said God please be with me and then stepped out said police officer drop your weapon and he turned toward me with his AR-15…I just walked towards him with my gun pointed at him …the citizens who were inside that church undoubtedly saved multiple parishioners…many more people would have died last night…et al”
MR: Here are the 27 words of the Second Amendment, read by the late Justice Antonin Scalia:
JUSTICE ANTONIN SCALIA: The Second Amendment provides, quote, “ A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” The interpretive difficulty and what causes …
MR: Forceful voices on both sides of the debate. Defending the pro-second amendment side:
DAVE WORKMAN: There’s a lot of numbers on defensive gun use, the most recent best estimate is about 1.6 million annually.
PAUL CLEMENT: My two individual clients, who were denied their right to exercise their second amendment rights….
And defending the pro-gun control side:
LETITIA JAMES: New York has some of the strongest gun laws in the nation. But guns do not stop working as they cross the threshold of another state’s border. Which is why our gun licensing laws are necessary.
Two hundred thirty years after ratification of the Bill of Rights, the scope of the Second Amendment is still in dispute. But not all of it. Not any more. That’s because of a man who asked a simple yet profound question each of us must answer: Who is responsible for my personal security?
THEME: I Clarence Thomas…I Sonya Sotomayor…I Neil M. Gorsuch…I John G Roberts…I Elena Kagan…I Samuel Alito, Jr…I Amy Coney Barrett…I Brett M. Kavanaugh…I Stephen Breyer…do solemnly swear, do solemnly swear, do solemnly swear, that I will administer justice, without respect to persons, that I will support and defend the constitution of the United States, so help me God…[APPLAUSE]
MR: Welcome to Legal Docket, I’m Mary Reichard.
JENNY ROUGH, CO-HOST: And I’m Jenny Rough. This podcast is from the team that brings you The World and Everything in It.
MARSHALL: The honorable Chief Justice and the associate justices of the Supreme Court of the United States. Oyez! Oyez! Oyez!
JR: Come with us inside the world of the Supreme Court as we delve deeply into the most recent term’s disputes and decisions. Learn how they make a difference to your life.
MARSHALL: All persons having business before the honorable Supreme Court…
MR: Today, when your right to defend yourself with a gun…is at the discretion of a stranger.
MARSHALL: God save the United States and this honorable court.
SPONSOR: Support for The Legal Docket Podcast comes from listeners like you. Additional support comes from Samaritan Ministries, a Biblical and affordable solution to health care, connecting more than 280,000 Christians across the nation who help pay one another’s medical bills. More at samaritanministries.org/worldpodcast.
JR: Robert Nash is a middle aged man with black-rimmed glasses and a goatee. He works in a furniture store and lives in Rensselaer County, New York. That includes the metropolitan area of Albany, Schenectady, and Troy.
MR: Nash isn’t the kind of guy who seeks attention. He lives a quiet life. He’s deferential and polite. Not the sort to get in your face and insist on his way in an argument.
Understandably, given his personality, he’s media shy. Prior to reaching the Supreme Court, Nash only gave one interview about his challenge to New York’s restrictions on gun licensure. Gun rights advocate Cam Edwards landed that one interview. He gave me permission to use the interview here.
Listen to Robert Nash explain on the podcast Bearing Arms whether he knew what he was up against by becoming the plaintiff who challenged state law.
ROBERT NASH: I grew up in New York State. I’ve always lived in New York State. And just like anything else you do in New York State, there’s, you know, there’s a lot of red tape to go through. But I felt like, you know, having a clean record, and just following the steps that everything would go smooth.
MR: “Smooth” … means one thing in one state—Arizona, for example. And something altogether different in another: New York.
NASH: Well, I mean, it’s a long and lengthy pistol permitting process. So you know, the initial step would be to take a safety class, you need four references, background check, fingerprinting, you know, submit that with a few hundred bucks, and then wait. So you’re waiting, I waited out about four or five months. And I was issued a pistol permit. But it had restrictions on it saying that I can only use it for hunting and target shooting.
MR: That was in 2015. And then, a string of robberies in Nash’s neighborhood prompted him to start making preparations. He’d taken some more safety courses in the meantime and thought it was time to ask that those restrictions be lifted from his pistol permit.
Rensselaer County randomly assigns several judges to handle requests like these. Two years later in 2017, Nash drew Judge Richard McNally, Jr. currently serving out his term of 14 years in that role.
NASH: I had to go in the judge’s chambers to ask this. And all’s he really did was read my letter back to me and said, you don’t have proper cause. I didn’t know what that meant at the time. And but I just knew I was upset because I had already had friends that have gone through in the same county and other counties that had lesser reasons. Didn’t take their advanced safety class, which I did, which is optional. But I figured if I took that I’m a shoo- in. Clean record, advance safety class. I got this in the bag. I just need to go and do it. And I’ll get a yes. But I got a no, and it was then that I said that this law is not right.
JR: New York state law requires “proper cause” for an unrestricted license and the judge determined Nash didn’t have it. “Proper cause” requires Nash to show a particular-ized need to defend himself. For example, you have a restraining order against someone known to have a gun. Or a job that requires you to carry around a large sum of money. But even people in those situations are denied permits; it’s totally dependent on what judge handles the request.
According to Judge McNally, Nash had only pointed to some general crime in his neighborhood. Nothing that targeted him in particular. That did not sit well.
NASH: No I mean, I sat on it. Just upset, didn’t know what to do. Knew if I got a lawyer, it wouldn’t be enough. Because it’s a bigger, it’s bigger picture than that, like this has affected millions of New Yorkers. So I didn’t know what to do. I didn’t do anything for probably about six months. I was already a member of the New York State Rifle and Pistol Association. I said, let me try and contact them. I email them. And I got an email back from Tom King. And he says, I know all about this.
MR: Those emails really got things rolling. Tom King is president of the New York State Rifle and Pistol Association. He was willing to meet with us, so Jenny and I traveled to East Greenbush, New York.
MR: So here we are in New York State Rifle and Pistol Association [GRANDFATHER CLOCK CHIMES] Hi! / Hello! / Hi, there. You must be Tom? / Hi, Tom. Mary Reichard. This is Jenny Rough. / Hi Jenny.
JR: Headquarters is a one-story brick building with a sticker on the front door that reads: “Please keep all weapons holstered unless need arises. In such case, judicious marksmanship is appreciated.” King leads us to his office…
TOM KING: Yea. First door to the right there. (walking sounds)
JR: …where the focal point is a life-size cardboard cutout of John Wayne and next to it, the head of a wild boar. King tells us the history of his organization.
KING: Well, we are the oldest Second Amendment civil rights group in the United States. We predate the NRA. We formed the NRA.
MARY: And why? What was the original mission?
KING: Okay, in 1871, after the Civil War, two generals and a colonel, that were civil war commanders, decided to set up an organization to teach marksmanship to the young men of New York State because their marksmanship was so abysmal during the Civil War, the southerners were much better shots.
MR: King got interested in guns while earning merit badges in the Boy Scouts. He grew up, started working, and attended meetings with the group.
KING: Then all of the anti gun stuff started in New York State and, and, and honestly, I said to myself, this isn’t going to happen. Okay. And and I’m also, I’m a strict constructionist. Okay? I believe in the Constitution. I believe in our forefathers. I believe that the country was formed on inalienable rights, okay?
JR: King had already homed in on the problem with New York’s “proper cause” requirement to get a gun for self-defense.
KING: Proper cause is that whimsical standard, okay. Because what one judge says is proper cause? Another judge may not. You can’t say “This is proper cause.” And if I have this need, I’m going to get it and that may happen with Judge A. But you get to Judge B and he will say, no, my, I’m totally different than that. You got to, you have to have these, these requirements in order for me to get a concealed carry, okay.
JR: Subjective criteria. That can be a problem in the law. People need to know in advance what’s allowed and what’s not allowed. They need to be able to hold government officials to account when they overreach or use vagueness as a weapon against citizens.
MR: What’s King’s motivation to pursue this?
KING: [IN CAR] You know, there are responsibilities that God gives you for certain roles, okay. And my role as a, as a provider as a, as a protector, you know, is, that’s what I have to do and, and you have to protect yourself and your family in the ways that are best applicable for protecting yourself.
MR: King took us to a shooting range in the next town over where he practices. Green Island.
JR: Connie Cortright runs the front desk and coordinates membership.
CONNIE CORTRIGHT: American Tactical. This is Connie…
JR: We slip into another room to talk. You can still hear people practicing in the firing lanes. It’s loud here. Cortright is well- aware of the crime stats and reads the news.
CORTRIGHT: That’s why I want to carry now because I don’t want to be defenseless in an attack. And there’s attacks happening every day all over the place. You can be in the grocery store, the movie theater, anywhere? And somebody can attack with a gun or a knife or their hands? It doesn’t matter? You know, I’m five foot two. What am I gonna do when a big guy comes at me?
She’s all about gun safety. So is everyone else here.
CORTRIGHT: That’s why we here at the range, we do classes and courses and private lessons to drill this into people, the gun safety, and that’s, I’m a, I’m a safety freak. So you know, whenever anyone puts a gun in my hands here, or I take a gun off the wall, the first thing I do is clear the gun. So what that means is I drop the magazine out of it. But if it’s a pistol, I pull the slide back and I can see, physically see, that there is no round in the barrel and that there are no rounds in the magazine. And, you know, I’ve said this many times, I used to work with a former Navy SEAL here and a former Army sniper. And if they were within two feet of me, and I watched them clear the gun and they handed it to me, I would clear it again myself.
MR: Cortright sees little logic in disarming well-intentioned people. She referenced a mass shooting that’d happened that very week we visited:
CORTRIGHT: We just had a mass shooting in Sacramento, California the other day. California has some of the strictest gun laws in the country if not the strictest gun laws in the country. But those guys still got guns. And I would bet you they were illegal guns. I work here in this gun range and police officers from around the area come in here to shoot evidence guns that they have taken from criminals. to They’ll take the brass, they’ll shoot it, take the spent brass, send it to the lab to see if that gun has been used in any other crimes. It’s every week or two at least these guys are coming in here with these guns and I’m always asking them how’d you get it? What’s the story? And they’ll tell me that it was illegal. You know, almost every single one of the evidence guns they bring in that was used in a crime, some of them are homicides. They’re illegal guns. I just asked one of the police officers today about that. Like how many of the guns you take off the streets are illegal? He says, all of them.
MR: Now seems like a good time for some background on what the constitution says about gun rights. You may be wondering how in the 231 years since the Second Amendment was ratified… we’re still working out what it means.
Well, past decisions of the Supreme Court inform the issue in some ways, and they are fairly recent opinions—because what we know as gun control is similarly recent.
This case builds upon those recent opinions. From 2008, a case called District of Columbia v Heller. Here’s Justice Antonin Scalia announcing that opinion in a case that arose out of DC:
JUSTICE SCALIA: We hold that the Second Amendment guarantees an individual right to have and use arms for self defense in the home and that the District’s handgun ban as well as its requirement that firearms in the home be rendered inoperative, violates that right.
MR: Heller clarified that guns for self defense inside the home is a Constitutional right.
But because that dispute arose out of the District of Columbia, the ruling only applied to D.C. That’s a story in itself, far beyond the scope of this podcast.
JR: Well, two years later in a case called McDonald v City of Chicago, the Supreme Court expanded the right laid out in Heller.
Here’s Justice Samuel Alito announcing that opinion:
JUSTICE SAMUEL ALITO: I now turn directly to the question before us in this case: does the Second Amendment right recognized in Heller apply to the states? And if so, does it apply to the states to the same extent as it applies to the Federal Government? The Court holds that it does.
JR:Together, those two decisions are what Nash and company seek to expand. The question yet unanswered was: Does the Second Amendment extend to carrying a gun for self defense outside the home?
MR: And that’s the question Nash took up, along with Tom King at New York State Rifle and Pistol Association and another man named Brandon Koch. A judge also denied him an unrestricted license.
So the three of them got together, hired a lawyer, and sued New York officials in District Court in 2018. But state case law was against them. Even the three plaintiffs had to concede that point.
Naturally, the defendant state officials pointed to that inconvenient fact for plaintiffs and moved to dismiss the case. The district court did as it was bound to do: case dismissed! Convinced they were right, the plaintiffs appealed. And they lost again.
JR: Undeterred, they hired another lawyer. But not just any lawyer: Paul Clement, the former Solicitor General of the United States. He’s argued over a hundred cases before the Supreme Court, including the McDonald case. That was the one that made it the law of the land that you have the right to defend yourself with a gun inside your home.
That the Supreme Court agreed to take up his case surprised Nash.
NASH: I knew we had a good case. I didn’t think that it would get this far. I mean, even once it got to the Supreme Court, there was such a slim chance that it would get heard, especially being a Second Amendment case. I mean, hasn’t been since what 2010, McDonald vs. Chicago. …who would have thought we had the right justices in place.
MR: Now usually, by the time a dispute reaches the high court, there’s a well developed record for the justices to review. But not here. Those two earlier dismissals meant no discovery process or trial record even existed.
Just a single constitutional question presented to the justices: Is New York’s law unconstitutional in that it requires applicants for an unrestricted carry license to show a special need for self-defense? Paul Clement wasted no time during oral argument in November 2021.
PAUL CLEMENT: That is not how constitutional rights work. Carrying a firearm outside the home is a fundamental constitutional right. It is not some extraordinary action that requires an extraordinary demonstration of need. Petitioners here seek nothing more than their fellow citizens in 43 other states already enjoy, and those states include some of the most populous cities in the country.
JR: Clement pounded on that number, forty-three. And for good reason. Forty-three other states issue licenses that are not discretionary. That’s called a “shall issue” regime.
Meaning, so long as you meet certain objective criteria like background checks and training, the state “shall issue” you your license to carry for self defense.
MR: That, as opposed to New York’s “may issue” regime. Subjective criteria within the mind of the judge means you may or may not get your license to carry for self defense. “May issue,” means “at the discretion of a government official.”
Defending New York’s way of doing things was state Solicitor General Barbara Underwood. She argued that restrictions on carrying a gun in public aren’t new.
She made the point that …they go back 700 years.
BARBARA UNDERWOOD: The history runs from the 14th-century statute of Northampton, which prohibited carrying arms in fairs and markets and other public gathering places, to similar laws adopted by half of the American colonies and states in the founding period, to later state laws that relaxed restrictions for people who had a concrete need for armed self-defense.
JR: But Justice Samuel Alito drilled down into what she meant by “concrete need.”
ALITO: So I want you to think about people like this, people who work late at night in Manhattan, it might be somebody who cleans offices, it might be a doorman at an apartment, it might be a nurse or an orderly, it might be somebody who washes dishes. None of these people has criminal record. They’re all law-abiding citizens. They get off work around midnight, maybe even after midnight. They have to commute home by subway, maybe by bus. When they arrive at the subway station or the bus stop, they have to walk some distance through a high-crime area, and they apply for a license, and they say: Look, nobody has said I am going to mug you next Thursday. However, there have been a lot of muggings in this area, and I am scared to death. They do not get licenses, is that right?
UNDERWOOD: That is in general right, yes. If there’s nothing particular to them, that’s right.
MR: Underwood made the same point that Judge McNally did in turning down Robert Nash for a license to carry in the first place. Generalized crime in an area doesn’t mean that everybody can go around carrying a gun just in case of a possible confrontation.
So Justice Alito pressed that argument further:
ALITO: There are a lot of armed people on the streets of New York and in the subways late at night right now, aren’t there?
UNDERWOOD: I don’t know that there are a lot of armed people.
UNDERWOOD: People with Illegal guns….
ALITO: Yeah, that’s what I’m talking about. How many illegal guns were seized by the New York Police Department last year. Do you have any idea?
UNDERWOOD: I don’t have that number, but I’m sure it’s a substantial number.
ALITO: But all these people with illegal guns, they’re on the subway. They’re walking around the streets. But the ordinary hardworking law-abiding people I mentioned, no. They can’t be armed.
UNDERWOOD: Well, I think the subways are— when there are problems on the subways— are protected by the transit police…
MR: That’s another thread of defense in New York’s argument: that in heavily populated areas, the police are there. They protect. So there’s not as much need for an individual to carry a gun for self-defense.
Underwood then argued that a lot of civilians carrying guns in a high population area puts police in danger. Once police arrive at a crime scene, they can’t tell the bad guy with a gun from the good guy with a gun.
JR: Justice Alito pointed out that celebrities and the politically well connected aren’t turned down for licenses to carry for their own defense. What’s the constitutional principle at work there? Justice Brett Kavanaugh put it bluntly:
JUSTICE BRETT KAVANAUGH: Why isn’t it good enough to say I live in a violent area and I want to be able to defend myself?
MR: Right back to square one with that question. Underwood only answered that the judge assigned to issue licenses to carry would assess statements of violence and danger in an area, and decide whether an individual is justified in needing a gun for self defense. Justice Kavanaugh:
KAVANAUGH: Well, that’s the real concern, isn’t it, with any constitutional right? If it’s the discretion of an individual officer, that seems inconsistent with an objective constitutional right.
JR: Up to this point in the argument, questions centered on how subjective New York’s gun law was. Was it unfair to the average person with a reasonable fear of harm to be denied a license in this county and not that county? Then the questions shifted. Listen to this question to Clement from Justice Elena Kagan:
JUSTICE ELENA KAGAN: You know, if you had a bunch of statistics which suggest that the state is quite sensitive to people’s need for self-defense and gives these licenses a significant amount of the time, you might think differently about the regulatory scheme, wouldn’t you?
JR: Clement stayed with his main contention: statistics or not, a constitutional right cannot be subject to the whim of a government official.
Justice Stephen Breyer thought it made sense to have a different licensing scheme for different kinds of gun activities. After all, hunting and target practice are distinct from self defense needs.
JUSTICE STEPHEN BREYER: You have a concealed weapon to go hunting. You’re out with an intent to shoot, say, a deer or a rabbit, which has its problems. But, here, when you have a self-defense just for whatever you want to carry a concealed weapon, you go shooting it around and somebody gets killed.
PAUL CLEMENT: With respect, Justice Breyer, that’s not been the experience in the 43 jurisdictions that allow their citizens to have the same rights that my clients are looking for.
MR: There’s that mention of the number 43 again…the number of states that unlike New York more freely issue licenses for self-defense.
While we awaited the court’s opinion, I contacted experts on both sides… including big names who filed briefs in support of New York: The woman who argued for New York, Solicitor General Barbara Underwood. The Attorney General of New York, Letitia James. The Giffords Law Center. The National League of Cities. Everytown. The Educational Fund to Stop Gun Violence. And many others. Some of them politely declined to talk. Others ignored me altogether.
JR: Except for the City of Chicago. Mary, you received an email from Chicago director of public affairs Kristen Canaban. She attached an MP3 file that she made for you. Let’s play that.
KRISTEN CANABAN: Chicago is committed to efforts to reduce gun violence and its devastating consequences and will continue to support reasonable regulations that can coexist with the right to keep and bear arms.
JR: That’s the entirety of it, just 14 seconds. So, to lay out the arguments on the gun-control side, here are public statements made by a few of the entities in support of New York’s law.
First, from an organization called Everytown that advocates for gun control and filed a brief in support of New York. It’s funded by former New York Mayor Michael Bloomberg. Last fall, Everytown held a Facebook Live meeting with gun control advocates. First, William Taylor. He’s that organization’s Deputy Director:
WILLIAM TAYLOR: And New York is not the only state with this type of proper cause, or good cause regime. California, New Jersey, Massachusetts, Maryland and others have similar laws. And together those states make up approximately a quarter of the US population. So in total more than 80 million people. And these laws work. Researchers have found that states with more stringent public carry restrictions, like New York experienced significantly lower rates of gun related homicides and other violent crimes.
MR: That claim is refuted by many researchers, such as John Lott. We’ll hear from him later.
Another group that filed a brief in support of New York is the Giffords Law Center to Prevent Gun Violence, an organization led by Gabby Giffords. She’s the member of Congress who was shot in the head by a man in Tucson, Arizona, in 2011.
The Giffords Center group met in June 2022 in the nation’s capital to demand new gun laws. This was days before the Senate passed gun control legislation by a 65-33 vote. President Biden signed the bill into law on June 25th.
GIFFORDS CENTER EVENT: There were at least 13 mass shootings over this last weekend alone. They left 17 people dead and dozens injured. Families are never gonna be the same again. And while mass shooting gather most of the media attention, over a hundred people are killed by guns in America every single day.
JR: Other briefs say that the plaintiffs here misread history. Others argue the words of the Second Amendment itself solve this dispute. The text preceding the “right to keep and bear arms” talks about a well-regulated militia. Prior to Heller, the court tied the text of the Second Amendment to that—different from an individual self-defense right.
Another argument is that the best way to curb gun violence is to allow for local rules and local enforcement, tailored to the situation.
MR: And a personal story, this one from 2019 but common to the focus of gun control advocates. Stories of people harmed by other people with guns. Jennifer Longdon is an Arizona state representative. She testified on the topic of public health consequences and costs of gun violence before a US House Oversight subcommittee. She described how idyllic her life was going, back from vacation and newly engaged, on the way to get a drive through taco. Someone in a truck sideswiped the car she and her fiance were in. Then someone inside the truck opened fire.
JENNIFER LONGDON: And we were shattered. Five bullets later. My fiance was first shot in the shoulder and another bullet went through his wrist and into his left temple, and a fragment of that bullet still rests behind his right eye. He’s now blind, and lives with a traumatic brain injury. I was hit in the back by the last bullet fired and paralyzed at mid chest. We weren’t in a bad neighborhood or buying drugs, it wasn’t road rage. We were simply two of the roughly 262 people who were shot in the US on any given day. Gun violence means that in our America, an average of 321 families pay a price in blood and loss that is incalculable.
JR: Her assailant was never found.
MR: But then there are the stories of people who stop a crime. Like Mark Walters, as he told John Stossel on his television show.
STOSSEL: Mark, what happened to you?
WALTERS: In 2002, my daughter was 2 weeks old and I was on my way to work. And I found myself the intended victim of an apparent carjacking attempt at about 6:30 in the morning. I had a lawfully carried Glock side-arm. I unlatched my seat belt, drew my weapon and stopped the attack or the impending attack against me.
STOSSEL: Just by showing the gun?
WALTERS: Just by showing the gun. Just by showing the gun.
STOSSEL: And we don’t know how often that happens because that doesn’t get reported.
WALTERS: No we do actually. There are estimates. The Department of Justice sets it about 800,000. It’s the lowest I’ve seen. The uh Gary Kleck has done studies that show approximately up to 2.5 million times. So I became one of those statistics.
MR: That’s the difficulty…we’re talking numbers of people killed or injured by criminals with guns. And we’re talking numbers of people saved by law abiding people with guns….who’s right? It’s a contentious issue. We cannot resolve that here. We can only highlight a few points.
The Crime Prevention Research Center keeps statistics on guns and crime. John Lott founded the organization and is a recognized expert in the field. Lott says certain aspects of crime are known:
JOHN LOTT: You’re almost always talking about young males doing the crime. And when a man attacks a woman or an elderly person, there’s a lot larger strength differential that exists there than when a man is attacking another man. And the presence of a gun makes a much bigger relative change in a woman’s ability to go and protect herself than it does than it does for a man.
JR: Lott underscores the obvious question in these situations:
LOTT: …about what people should do when they’re having to confront a criminal. And what you find is that by far the safest course of action for people to take when they’re confronted by criminals is to have a gun. Well, after my original research was published in 1997, on concealed carry laws, there’s literally been, you know, about four dozen peer reviewed academic journal articles that have been published on the topic. Most of the academic journal articles find that the right to carry laws reduce violent crime.
JR: And then, there’s this statistic:
LOTT: 94% of the mass public shootings that we’ve had in the United States since 1950? They keep on occurring in places where guns are banned. You know, these attackers may be crazy, in some sense, but they’re not stupid. Their goal is to go and kill as many people as possible. And they go to those places where people aren’t allowed to be able to go and protect themselves.
JR: Lott recently published an article in RealClearInvestigations laying out a problem of public perception:
LOTT: But we also have a list of what according to police would have been mass public shootings if there hadn’t been a presence of a concealed handgun permit holder over though just last few years. There’re dozens of those cases. The thing is, they virtually never get news coverage. Any national news coverage for sure and anytime they do get national news coverage, they botch the story.
JR: It’s hard for the average person to grasp what all this means, what the statistics and media coverage— or lack of it— says about possible solutions.
MR: What the average person does know is that unlike other countries, the United States has a Second Amendment. We have more guns than we have people. Existing gun laws didn’t stop the mass shooters. And if you are under attack or find yourself in a dangerous situation, you want the ability to defend yourself. That’s what our plaintiff Robert Nash wants to do. Defend himself against potential threats.
When the Supreme Court handed down the opinion in this case in June 2022, it struck down New York’s discretionary regime. The vote was 6-3. We asked some law professors to analyze the opinion.
JR: Brad Jacob is a professor at Regent University School of Law. He’s developed expertise in the US Constitution since the 1980s. Jacob sees the opinion written by Justice Clarence Thomas as moving the ball on the Second Amendment. Heller said the Second Amendment is an individual right to keep and bear arms. McDonald applied that to the states.
BRAD JACOB: And then Bruen says, the right to keep and bear arms includes not only keeping it in your home, but in some way being able to bear it, carry it out into public. And so the court answered that question.
MR: The opinion leans heavily on history by using originalism. Now that’s a method of interpreting the Constitution using the original understanding of people at the time it was written. Professor Darrell Miller at Duke University School of Law explains that:
DARRELL MILLER: Originalism is a theory about how to interpret the Constitution. And it’s actually done some evolution. The first version of originalism was “What did James Madison, Alexander Hamilton, the people that actually wrote the Constitution, what did they intend?” That’s pretty common in terms of what you hear on the radio or what you hear in news stories.
MR: He says it’s different now.
MILLER: But the kind of originalism that’s being practiced now, by academics and by judges is what’s known as original public meaning originalism, which asks a slightly different question. It’s not what did James Madison in his heart of hearts think, you know, he was doing. It’s what would ordinary people at the time the Amendment was ratified, think these words meant. It’s essentially a linguistic exercise. And that is what originalism is today.
Professor Joseph Blocher is also with Duke University School of Law. He sees a kink in that way of analyzing things.
JOSEPH BLOCHER: You know, firearm technology and the kinds of problems that firearms can cause when they’re put to misuse have changed so remarkably, since 1791. I mean, I have had the opportunity to shoot a flintlock musket, and I’ve had the opportunity to shoot an AR-15. And the difference is categorical. I mean, they’re like different items. You know, they’re similar in some ways, they both fire a projectile and they can kill a person. But, you know, if you had, if I had to choose between a group of people armed with muskets, and one person with an AR-15. Who’s going to win the fight? It’s probably going to be the one person with the AR-15. So how do we kind of draw analogies from the guns and the gun laws that existed in a very different time than we have today?
Blocher had a practical illustration of his point.
BLOCHER: Today there’s a rule against carrying an armed, carrying a loaded gun into an airplane, right? What did the framing generation think about that? Nothing. I mean, that they were brilliant in a lot of ways, but they didn’t, you know, James Madison had no conception of an airplane. So we have to do all this kind of analogizing. And that’s, I think, where it’s going to be really tricky going forward with this sort of purely historical approach.
MR: Tricky or not, the decision does mean that seven states will have to change their gun licensing schemes. Those states are New York, California, Maryland, Hawaii, Massachusetts, New Jersey and Rhode Island.
Jacob points to other tricky areas going forward: how to decide limits on gun rights? And, is this a weapons specific ruling?
JACOB: Well, an ordinary handgun, one would presume is covered by the Second Amendment. A global thermonuclear warhead is not. If I want to have a bunch of those in my garage, that’s not my second amendment right. But there’s a line somewhere in between and then you get into assault weapons and big magazines and little magazines and semi automatic versus… So that line is still fuzzy. That hasn’t been decided.
MR: Another question left to another day: in what places may the government ban firearms? Right after this ruling came down, New York enacted a new law that made nearly everywhere a gun free zone.
JACOB: I don’t think that’s going to stand up in court, either. But that was their response. To say well if you have a right to carry your weapon, we’re going to find restaurants and bars and sporting events and churches and you know regardless of whether the owners of those facilities want guns or not, we’re going to say you can’t have them there.
John Lott, the crime statistics expert you already heard from, told us that mass shootings typically happen in those gun-free zones. So that new rule doesn’t seem to take that into account. A third category of unanswered questions around the Second Amendment involves process.
LOTT: You know, if you have the right to keep and bear arms, what hoops can the government make you go through to get there? And here we’re talking about background checks and waiting periods. And, you know, maybe things like a red flag laws that if somebody has mental health issues, they can not necessarily have your firearms taken away forever, but at least have that delayed until there’s an opportunity to to investigate that.
JR: Professors Miller and Blocher thought the decision wasn’t well crafted… in terms of heading off future litigation and problems. Professor Jacob saw it differently:
JACOB: When a court starts addressing issues that aren’t in the case. Number one, they don’t have a fact record coming up from the trial court. Generally, the trial court says what the facts are, and appellate courts apply law. If you start making up your own facts, you don’t have that. You also typically don’t have issues that are argued and briefed by the parties. When the court waltzes off and starts deciding things that it doesn’t have in front of us. You end up with Roe versus Wade. And in Bruen, the court isn’t going down the hypothetical path. They’re saying, the question for today is simply does the right to keep and bear include the right to bear? To carry? And the answer to that is yes.
MR: Before this decision came down, lower courts trying to apply Heller and McDonald started to apply different tests as to challenges to gun restrictions. Some held the government to the highest level of review, called strict scrutiny.
JACOB: And so we’ve had in the wake of Heller and McDonald, a lot of varying court opinions, depending on where you are in the country. And what Bruen does is says, We’re not going to use the balancing test, we’re not going to have strict scrutiny, we’re not going to have intermediate scrutiny, we’re instead going to look historically.
MR: …which does simplify things quite a lot:
JACOB: My friend Mike Paulson wrote an article called “Medium Rare Scrutiny,” where he suggested there’s actually more than three: that there’s, there’s you can have medium rare and medium well and burnt to a crisp.
MR: Jacob then turned his attention to the dissent, written by Justice Stephen Breyer. The dissent lists how many people have been killed or hurt by people misusing guns, tapping into the trauma of it. Again, Jacob:
JACOB: But most of what Breyer is writing about in this sort of emotive “can’t we just do something” way, isn’t really addressing the constitutional issue. Because the constitutional question is, even if there are countervailing interests, even if there are really serious, important problems, if you’ve got a constitutional right, it has to be protected within the parameters of that right. You don’t need constitutional rights for when everyone in the country agrees with your side of the equation. You don’t need free speech to deliver a message that everyone loves. Who needs free speech? Westboro Baptist Church needs free speech because everybody thinks they’re crazy. And nobody wants to hear their message. And so that’s where you test the constitutional right. Well, it’s kind of the same with gun rights. Guns have caused many problems in our country. But is the answer to that saying, “Well, take the guns away from the people who aren’t crazy and who aren’t shooting up.” Or are there other ways of addressing these issues? The Breyer dissent really kind of smooths over that. It’s tugging at the heartstrings. Guns are so bad, we have to do something. And so let’s do this, regardless of what the Constitution says.
JR: Next, Jacob turns to the crux of Justice Kavanaugh’s concurrence. New York argued that the only way to make its people safe is with a discretionary restriction on firearms.
JACOB: And Kavanaugh is looking and saying most of the country doesn’t do this. If you’re claiming that the government’s interest here is so important, so high, that it justifies infringing Second Amendment rights? Kavanaugh says, the rest of the country proves you wrong.
MR: One thing bothered me about this decision that came down just one day before the Dobbs ruling. Dobbs of course the ruling that overturned Roe v Wade and Casey v Planned Parenthood and returned abortion regulation to the states.
Many celebrated that application of federalism. Meaning, the powers reserved to the federal government under the Constitution belong there. All other powers not so enumerated are reserved for the states.
But in this gun-rights case from New York, the same majority justices did not send the dispute back to New York to settle. Some media outlets screamed hypocrisy, that those decisions are irreconcilable. But Jacob doesn’t see it that way.
JACOB: That’s actually not that difficult. The Second Amendment is part of the Constitution. There is a constitutional right to keep and bear arms and the states under the 14th Amendment are required to uphold that right. So all you’re doing in Heller, in McDonald, and Bruen is figuring out what are the parameters of the Second Amendment right. Whatever they are, the state must follow. Abortion was never a constitutional right to begin with. We’re still looking at fallout of ridiculous judicial creativity with Roe in ‘73 and with Casey in ‘92, where the Supreme Court believes they know what modern America needs. Believes that these the unborn are not people and that women need the sexual freedom to not have to worry about being pregnant. And then, therefore this must be in the Constitution somewhere. And so Dobbs is returning to the status quo ante. Dobbs is going back to what they should have said in 1973, which is there is no constitutional right to abortion. So yes, this is a federalism issue. The states get to figure it out, because there isn’t one word in the Constitution that stops them from doing that. There’s a Second Amendment that stops the states from doing whatever they want with respect to guns.
JR: Professor Miller brought out a point that anyone who’s lived in both urban and rural areas knows first hand. He recalled the exchange during oral argument between Justice Alito and New York Solicitor General Barbara Underwood … the one about a late-night walk or subway ride home after work in the city.
MILLER: It was absolutely devastating because it sort of hits you viscerally. Everybody’s been on a you know, in dark street at night and thought you know am I in danger. Bu t one of the things that it highlights is this paradox about the Second Amendment, which is, you know, a city has more crime, but it also has more police. And is also more densely populated. So which way does that cut? As opposed to being in a rural area where it’s not as policed, where, you know, self defense might be the only kind of defense that’s available to a person. And so one of the paradoxes that’s never quite adequately explored in the opinion is the sort of distinction between the country and the city. Both in terms of the need for firearms, but also in terms of the real differences in terms of gun cultures in these two areas.
MR: So there you have it: arguments pro and con, with many questions left to answer. And the challenges are already coming in. We’ll end today with the man who began this episode, the soft spoken middle aged man who wants to protect himself in an area of escalating crime: Robert Nash.
NASH: All I’d like to say is, you know, just because you think you’re an ordinary citizen, like you can still do something about something. Whether it be a gun law or any other law. If you don’t believe it’s right, then fight for it. Follow it in the meantime, obviously, but you know, you can make a difference and, you know, if it takes it going to the Supreme Court, then you know, that’s what it takes. But if you believe it’s not right, then fight it.
MR: Legal Docket is produced by the creative team at WORLD Radio. I’m Mary Reichard.
JR: And I’m Jenny Rough. We’re the hosts each week. Our script editor is Nick Eicher. Technical engineer and producer is Paul Butler. Lillian Hamman helped with audio production.
MR: We want to give credit those people and organizations who contributed to this episode (or in some cases provided content the we are citing under the Fair Use Doctrine): podcaster Cam Edwards and his guest Robert Nash; Tom King; Connie Cortright; Supremecourt.gov; Oyez.com; the City of Chicago; Everytown meeting on Facebook Live; the Giffords Law Center to Prevent Gun Violence; Jennifer Longdon; John Stossel; John Lott; and Professors Brad Jacob, Darrell Miller, and Joseph Blocher.
JR: We’ve been so encouraged by the ratings and reviews you’ve left for us! Please keep them up. It helps others find us, and gets the word out about this very special podcast.
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