NEW YORK CONCEALED HANDGUN CARRY SINCE BRUEN: A STEP FORWARD OR A STEP BACKWARD?
POST BRUEN—WHAT IT ALL MEANS BOTH FOR THOSE WHO SUPPORT THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS AND THOSE WHO SEEK TO UNDERMINE AND EVENTUALLY DESTROY EXERCISE OF THE RIGHT
TO UNDERSTAND BRUEN, IT IS IMPERATIVE TO UNDERSTAND HELLER, AND THE RELATIONSHIP BETWEEN THE TWO; BRUEN DOESN’T REFORM OR REPLACE HELLER, IT BUILDS ON IT.
THE IMPLICATIONS OF BRUEN
On June 23, 2022, the U.S. Supreme Court decided N.Y. State Rifle & Pistol Association vs. Bruen, 2022 U.S. LEXIS 3055, ___ S. Ct.___. The Court reversed the decision of the U.S. Court of Appeals for the Second Circuit. The High Court held that, “Where the State of New York issued public-carry licenses only when an applicant demonstrated a special need for self-defense, the State’s licensing regime violated the Constitution because the Second and Fourteenth Amendments protected an individual’s right to carry a handgun for self-defense outside the home. A State could not prevent law-abiding citizens from publicly carrying handguns because they had not demonstrated a special need for self-defense.” The Court thereupon reversed and remanded the case for action, consistent with the Court’s ruling.
The holding of the Bruen case makes clear that a person has the fundamental right of armed self-defense outside the home no less so than he has the right of armed self-defense inside it. The implication of that holding is far-reaching:
- The language of the Second Amendment logically entails the fundamental right of armed self-defense.
- The carrying of a concealed handgun for self-defense outside the home as well as inside it is protected by the Second Amendment because it reflects the very intent behind the Second Amendment: the natural law right of armed self-defense.
- The Second Amendment is the codification of natural law, not man-made law, and Government and the Courts must adhere to the plain meaning of that natural law right, as codified.
- Demonstration of proper cause, i.e., proof of special need to carry a concealed handgun outside the home is inconsistent with the natural law right of armed self-defense, both inside the home and outside it. A person doesn’t need to demonstrate a special need.
- The right to self-defense inside the home or outside it is governed by the plain meaning of the Second Amendment. One man doesn’t need to prove to another or to an agent of Government that he has some especial need for a gun for purpose of self-defense to exercise the fundamental right of self-defense. For, the right of self-defense exists intrinsically in man. If Government fails to recognize and acknowledge this, requiring of one that one demonstrate especial need to purchase from Government a thing that man already owns and what Government, then, has no lawful right to sell to him—a property right that belongs to man and not to the Government—then all the worse for Government and its agents that would compel one to remit payment to Government for something freely given to man by the Divine Creator. The right of armed self-defense is a thing of immense value that Government audaciously and erroneously claims sole ownership of and demands remuneration for when or if Government offers it for sale, which is a rare event indeed and is a thing coveted and a thing hoarded by Government as if Government could ever successfully purloin it from man.
- Requiring proof of special need to carry a handgun outside the home is incompatible with the holdings of the two prior seminal U.S. Supreme Court Second Amendment cases, Heller, and McDonald.
- Requiring proof of special need to carry a handgun outside the home is not supported by historical precedent.
- New York concealed handgun carry law is incoherent, and, in its application, lends itself to partiality in treatment, resulting in disparate outcomes among applicants who have similar backgrounds. This invites corruption, at worst, and, at best, frequent errors in judgment by the NYPD Licensing Officers who are given vast decision-making authority.
- The recent amendments to New York’s handgun licensing regime don’t alleviate the vexing legal problems attendant to the previous handgun licensing regime; they exasperate those problems.
- New York’s requirement for a showing of proper cause by a person applying for a New York concealed handgun carry operates as a condition precedent to exercise of a natural law right. This means the applicant, who is not under any Federal Statutory disability, can demand that the Government issue him a concealed handgun carry license as matter of Right. But, in New York the applicant still cannot do this because the issuance of a license remains, in practice, a privilege, not a right. But this flies in the face of Bruen.
- Since, consistent with Bruen, a person, not under disability, has a right to demand issuance of a handgun carry license, as the Constitution mandates this, issuance of a license to carry a handgun for self-defense in the public sphere merges with the Right. Thus, a license to carry a handgun in public is truly redundant. If then, the Government insists on licensing the right, then the applicant, not under disability, is entitled to receive a license on demand so that he can exercise his fundamental and unalienable Right to Keep and Bear Arms.
- To refuse an applicant a valid concealed handgun carry license for self-defense outside the home, renders exercise of the Right both legally and logically nugatory and therefore vacuous—which it always had been prior to Bruen and Heller.
- Therefore, if a government insists on maintaining a handgun licensing structure, the act of issuing a license is reduced to a non-discretionary ministerial act and is therefore redundant, i.e., logically unnecessary. But, if the Government intends to maintain handgun licensing as a discretionary act, then any refusal of Government to issue a person a concealed handgun license, after Bruen, operates as an unconstitutional act of Government in naked defiance to the rulings and directives of the U.S. Supreme Court.
- It is the U.S. Supreme Court, alone that has sole authority under Article 3 of the U.S. Constitution to say what the law is.
- The New York Government for one, is deliberately ignoring High Court rulings, where the Court has spoken and has stated clearly and categorically, “what the law is.”
New York Governor, Kathy Hochul, along with the Democrat Party controlled State Legislature in Albany, New York, have implemented substantial amendments to the State’s handgun licensing regime that make it harder, not easier, to obtain a concealed handgun carry license.
But, to understand how it is and why it is New York’s licensing regime is unconstitutional now as before Bruen, and now even worse than before, we will peruse both Bruen and Heller, at length, looking closely at the test that Courts are obligated to apply and to adhere to when confronted with a challenge to Government action that impacts the very core of the Second Amendment Right.
Copyright © 2022 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
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