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Opinion |  Uncomfortable time for a Supreme Court fight


The New York State Rifle & Pistol Association’s new case challenges state law that restricts most permits to carry a firearm outside the home to applicants who can prove “the good cause exists.” The law does not define “good cause” and judicial interpretations over the years have defined it narrowly to require something more than a generalized desire to have a gun in hand in self-defense; there must be something that distinguishes the situation of the individual from the general public. (New York bans “open porting,” with licenses available only for carrying a concealed weapon.) The United States Court of Appeals for the Second Circuit upheld the dismissal of the lawsuit on the basis of its own long-standing precedent.

Paul Clement, who since his years as Solicitor General under the George W. Bush administration has dealt with numerous gun rights cases, wrote in his petition to the court that “the Second Amendment does not exist for protect only the rights of the happy few who distinguish Most federal appeals courts have ruled on laws similar to those in the Second Circuit, but not all, and disagreement between lower courts is generally a good predictor of the supreme decision . Willingness of the Court to take up a question.

Likewise, the unanimity of lower courts is generally a deterrent for Supreme Court review. On Monday, the court dismissed three cases challenging a federal law that imposes a lifetime ban on firearm possession on people who have been convicted of felonies and certain misdemeanors. The cases were all brought by people convicted of non-violent crimes who argued that the ban violated their Second Amendment rights. The cases were of more interest than usual because Judge Barrett, while still a judge of the Federal Court of Appeal, weighed in on the same issue in a dissenting opinion of a decision upholding the lifetime ban. The plaintiff in this case was a male convicted of Medicare fraud, a first-time offender with no history of violence.

In his opinion, Justice Barrett wrote that there is no “limitation of virtue” in the Second Amendment. Citing an opinion from Justice Alito in a separate Second Amendment context, she added that the application of a lifetime prohibition from owning a firearm to such a person “treats the Second Amendment as a ‘second class right,’ subject to a totally different set of rules than the other Bill of Rights guarantees. His dissenting opinion in Kanter v. Barr is what encouraged gun rights groups to assume they can count on Judge Barrett when the time comes.

The “second-class right-wing” charge is popular among conservative judges and the gun rights community. I’ve always been puzzled that any limitation of the Second Amendment turns it into some sort of second-class right. I can’t think of a constitutional right that the Supreme Court interpreted as absolutely unlimited – certainly not, for example, the Fourth Amendment’s protection against “unreasonable search and seizure,” to which Conservative justices have placed countless limitations. for many years.

Eleven years after Heller, the ruling itself has become more of a symbol and a topic of discussion than a legal opinion that people take the trouble to read.

If they did, they would see Heller as the limited decision that it was. Yes, he took the unprecedented step of interpreting the Second Amendment as giving an individual the right to own a firearm, but the court applied this new right to the unusual circumstance of a District of Columbia statute which prohibited private ownership of a firearm. Only the District and Chicago had such a strict law. The court only ruled that individuals have the constitutional right to own a firearm and keep it at home for self-defense. For the vast majority of people in the country, Heller has not changed anything in practice; it constitutionalized a right that gun owners already enjoyed under national and local laws.

That the Second Amendment also protect the right to walk on the streets, on a college campus, or in a supermarket, warehouse, state capitol, or the birthday party of a 12-year-old carrying a gun. are questions Heller did not ask. reply. The current court can answer these questions in the affirmative if it wishes. He has the votes. We’ll see soon if he has the discipline and the common sense to hold his hand.

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