by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The Supreme Court is expected to soon hear New York State Rifle & Pistol Association (NYSRPA) v. Bruen, challenging a New York law that allows judges and police commissioners to deny licenses, to carry handguns for self-defense away from home, to applicants they deem do not have “proper cause.”
As a result, applicants who want to exercise “the individual right to possess and carry weapons in case of confrontation,” as the Supreme Court put it in District of Columbia v. Heller (2008), are routinely turned down. …
… We may find out which view of the court is more insightful in NYSRPA. If there are five justices who care about original intent, New York will lose, because its law is at odds with the Second Amendment’s text and legislative history, and the history of the right to arms leading to the amendment’s adoption, and it denies New Yorkers their Fourteenth Amendment right to equal protection under the law.
But that’s a big “if.” In Heller, Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas were part of the majority that rejected original intent to justify banning guns quintessentially within the scope of the right to arms.
They began with the court’s confused opinion in U.S. v Miller (1939). Miller correctly recognized that the Second Amendment guarantees an individual right not limited to militiamen, but incorrectly suggested the right is limited to arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia.” …
… The burden of proof when challenging a gun ban should not be upon plaintiffs to show why they should be allowed to have the gun (e.g., version of a founding-era gun), it should be upon them to show why the government doesn’t have the power to ban it, or upon the government to show why it has that power.