2nd Amendment No longer Considered an “Orphan” by SCOTUS
Gun Owners across the nation rejoiced this week as the Supreme Court of the United States (SCOTUS) finally made a decision to hear a 2ndAmendment case that could have significant implications from New York to California. This is a stunning development, since it’s been more than a decade since SCOTUS has considered any 2nd Amendment lawsuit, and will now address the extent to which it protects Americans’ right to carry concealed firearms outside the home for self-defense.
NY State Rifle & Pistol Assoc. v. Corlett challenges the New York state requirement that individuals show “proper cause” to carry a gun, a rule that is often cited when applicants are denied the right to carry.
A lot of people are curious as to why the impact of this case goes far beyond the State of New York. GOC’s Executive Director Sam Paredes said “Although it is incredibly important that the case rules on the issue of “bearing” arms outside the home, GOC believes that it is even more important that the court include a directive to all lower courts that the only standard of review that is applicable for 2nd Amendment cases is the text, history and tradition of the meaning of the words at the founding. If the court disallows the use of two step judicial reviews such as rational basis, intermediate scrutiny, or strict scrutiny and mandates the originalist review process, we will be in a position to challenge many if not all gun control laws in the Golden State.”
A lot of frustration has been justifiably levied at SCOTUS for their reticence to hear gun-related cases in the last decade; the oft-cited Heller v Washington DC was decided in 2008 and McDonald v Chicago in 2010, which declared the 2nd Amendment as an individual right and protected the right to have readily accessible guns in the home. Justice Clarence Thomas has repeatedly criticized his colleagues for turning down similar cases in the past. “The right to keep and bear arms is apparently this Court’s constitutional orphan,” Thomas wrote in one dissent.
The late Justice Antonin Scalia opined in Heller v DC that the court would next have to consider how the 2nd Amendment right extends to carrying a firearm outside of the home, and the Corlett case specifically addresses this issue.
Acceptance of this case is the result of many years of effort on the part of the 2nd Amendment community – Gun Owners of California and Gun Owners of America included – to give the court multiple opportunities to decide a 2A case. Since the change in the make-up of the court after the confirmation of Justices Gorsuch, Kavanaugh and Barrett, it has been hoped that SCOTUS would give the 2nd Amendment the respect it deserves as one of the very foundations of our Constitution.
Obviously, the question before the court on the issue of “bearing” arms outside the home is hugely significant, but it’s necessary to look deeper at how the issue is actually decided. GOC believes the court should exclude the use of two step judicial reviews like rational basis (in other words, “does this make sense in 2021?), intermediate scrutiny (is there a compelling “government interest” that would allow the infringement on an enumerated right?), or strict scrutiny (a narrowly defined government interest). Rather, it’s imperative for the court to use the appropriate originalist review process, which was the intention of the Founders. This will then open the door to challenging a number of gun control laws in the Golden State and beyond.
This positive and exciting development comes in the midst of the 2nd Amendment being pummeled by the Biden Administration. GOC is on the front lines, however, making absolutely certain the Court hears the proper perspective from the 2nd Amendment community. The case will be heard when the Court convenes this Fall; please consider helping us in this enormous effort – GOC has been a key player in filing friend of the court (amicus) briefs and we pledge to continue this! JOIN US!