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April 26, 2021

After more than a decade, SCOTUS finally grants cert on big Second Amendment carry case

The Supreme Court ruled in Heller in 2008 that the Second Amendment secured the right to keep arms in the home, and then in McDonald applied this right to the states in 2010.  Most Court watchers thereafter said it was only a matter of time before the Court would need to address whether and how the Second Amendment applies to laws restricting or regulating the carrying of arms outside the home.  But for quite some time, the Supreme Court declined to take up this next big Second Amendment issue. 

But vIa this order list this morning, the Justices agreed to review New York’s concealed-carry laws through a cert grant in New York State Rifle & Pistol Association v. Corlett.  Here is how the Supreme Court framed the question presented via its cert grant:

The petition for a writ of certiorari is granted limited to the following question: Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

There will be lots of ink spilled about this grant and lots of amici briefs sure to be filed.  But I wonder if others will think it notable how the Court rewrote the petitioner's question presented in this cert petition, which asked (emphasis added): "Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense." 

Long-time readers may know I have been wondering for a long time about the textual or jurisprudential justification for saying that the Second Amendment does not apply to all "people," but only to so-called "law-abiding" ones (see, e.g., posts here and here and here).  I have long assumed that the "law-abiding" language appeared in Heller and McDonald at the behest of Justice Anthony Kennedy.  With Justice Kennedy no longer on the Court, I cannot help but wonder if the current Justices were eager to remove that Court-invented language from the question presented.   

I bring this issue to the fore, of course, because a broadly applicable Second Amendment that protects all people, and not just the so-called "law-abiding" ones, could have all sorts of implications for all sorts of criminal law and sentencing provisions related to gun possession.  The Supreme Court already has on its docket a case, Wooden, concerning a defendant who received over 15 years in prison under federal law for mere gun possession in his home due to his prior convictions (and at issue in Wooden is just the statutory issue of whether these past convictions triggered the extreme 15-year mandatory minimum term under federal law).  If the Second Amendment is to be anything other than a second-class right, it ought to protect all people (as the language of the Amendment indicates) and not just whatever people the Supreme Court might decide are special as it creates this jurisprudence. 

April 26, 2021 at 10:54 AM | Permalink


Back to the old West. Everybody will be packing--as is already the case in many states. Who will be the fastes draw?

Posted by: Michael Levine | Apr 26, 2021 6:15:30 PM

The re-frame is interesting for more than one reason.

It also took out the "handgun" part.

SCOTUS also dropped a per curiam of criminal justice note.

Posted by: Joe | Apr 27, 2021 10:12:05 AM

I would have no problem allowing ex convicts to have guns in most situations. I’m not sure why a guy who drove while under the influence and killed someone should be denied such a right.

However, almost all of our rights are limited if abused (right or wrong is another debate). We take away freedom, speech (sex offenders on the internet), and many others in such cases. If a gun is used in a felony, then you lose the right.

Otherwise, it is great to see SCOTUS have the opportunity to reestablish my right to carry where I see fit.

Posted by: TarlsQtr | Apr 27, 2021 5:15:22 PM

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