Why New York Rifle vs Bruen isn’t a clear win (yet)

Posted by Edgar Antillon - Written by Brian DeBauche

July 24, 2022

Federal v State constitution.

US CONSTITUTION: The Second Amendment of the United States Constitution reads: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Literally for the first two hundred years this was read to mean a collective right; meaning it must relate to militia function or preservation. There was a case that said exactly that, and found against firearm carrying or possession, in 1938: a case called Miller.

Importantly, no one knew if the 2nd Amendment applied to the states. States were therefore free to enact legislation and bills of rights that widely differ.

And by 1785 New York prohibited most concealed carrying of firearms. New York enacted ‘Sullivan’ laws in 1911 which prohibited any firearm concealed on a person. This was in response to a spate of killings, and the reaction created sweeping prohibitions.

New York until now, prohibited most firearms possession without a license; and limits the types of licenses in a way that prevents responsible firearm ownership. And, licenses are very rarely granted. New York used a means test, for any such license, and issued them only “when proper cause exists”. This was further defined by judicial precedent as “a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”

Things start to change in 2008 with a case called Heller: which reacted to a Washington DC complete ban on handguns in home.

The plaintiff in Heller challenged the constitutionality of the Washington D.C. handgun ban, a statute that had stood for 32 years. Many considered the statute the most stringent in the nation.

In a 5-4 decision, the Court, meticulously detailing the history and tradition of the Second Amendment at the time of the Constitutional Convention, proclaimed that the Second Amendment established an individual right for U.S. citizens to possess firearms and struck down the D.C. handgun ban as violative of that right.

The Supreme Court in Heller stated in summary, that self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the Heller Court held that individual self-defense is “the central component” of the Second Amendment right.

The majority carved out a 70 year old case, Miller as an exception to the general rule that Americans may possess firearms, claiming that law-abiding citizens cannot use sawed-off shotguns for any law-abiding purpose. Similarly, the Court in its dicta found regulations of similar weaponry that cannot be used for law-abiding purposes as laws that would not implicate the Second Amendment. Further, the Court suggested that the United States Constitution would not disallow regulations prohibiting criminals and the mentally ill from firearm possession.

Heller concluded that the Second Amendment codifies a pre-existing “individual right to possess and carry weapons in case of confrontation.”

Think of the implications of that sentence. In that one sentence, the Supreme Court redefined – the Second Amendment — into a protection of an individual right to bear arms; not to preserve a militia function collectively. This means any ordinary citizen can carry a firearm for personal protection under the U.S. Constitution, maybe.

MacDonald v City of Chicago — we finally get application to states

The plaintiff in a subsequent case, McDonald challenged the constitutionality of the Chicago handgun ban, which prohibited handgun possession by almost all private citizens — even in their own homes.

In a 5-4 decision, the Court, citing the intentions of the framers and ratifiers of the Fourteenth Amendment, held that the Second Amendment applies to the states through the incorporation doctrine. Therefore the 2nd Amendment applies to each state regardless of their own constitution and cases.

However, the Court did not have a majority on which clause of the Fourteenth Amendment incorporates the fundamental right to keep and bear arms for the purpose of self-defense.

The Second Amendment’s protections, whatever their limits, apply fully to the states through the Fourteenth Amendment. McDonald v. City of Chicago, ___ U.S. ___, 130 S.Ct. 3020, 3026, 3042, 177 L.Ed.2d 894 (2010). But it also reaffirmed Heller’s assurances that Second Amendment rights are far from absolute and that many longstanding handgun regulations are “presumptively lawful.” Heller, 554 U.S. at 627 n. 26, 128 S.Ct. 2783; see McDonald, 130 S.Ct. at 3047.

After Heller we received the following:

Regulations which ban weapons on government property. US v Dorosan, 350 Fed. Appx. 874 (5th Cir. 2009) (upholding defendant’s conviction for bringing a regulation which ban the illegal possession of a handgun as a juvenile, convicted handgun onto post office property);

Felon. US v Rene, 583 F.3d 8 (1st Cir. 2009) (holding that the Juvenile Delinquency Act ban of juvenile possession of handguns did not violate the Second Amendment);

Regulations Kachalsky v County of Westchester, 701 F.3d 81 (2nd Cir. 2012) (holding that a New York law preventing individuals from obtaining a license to possess a concealed firearm in public for general purposes unless the individual showed proper cause did not violate the Second Amendment which require a permit to carry a concealed weapon..)

Courts across the country struggled with the definition of Heller and application of law under the new cases. Heller provided no framework to analyze future gun cases; and left courts to invent or analyze their own gun regulations in ways that still justified individual prohibitions on responsible gun possession.

Courts generally found there was less state ability to regulate inside a home, as opposed to outside the home. Most courts found that the home was ‘special’ and both privacy, and liberty, were protected from government intrusion.

Now Robert Nash, Brandon Koch, and New York State Rifle and Pistol Association, Inc v. Bruen

The question they asked was: “Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.”

In this case, the issue is narrow but summarized is this:
“Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”

Robert Nash and Brandon Koch applied for New York licenses to carry firearms outside the home. The licensing officer denied their requests after determining that, under New York law, they had “failed to show ‘proper cause’ to carry a firearm in public for the purpose of self-defense, because [they] did not demonstrate a special need for self-defense that distinguished [them] from the general public.”

Nash, Koch and the New York State Rifle & Pistol Association argue that the Second Amendment protects the right to carry a firearm outside the house for self-defense, and they say that the state abridges “a right that the Constitution guarantees to all ‘the people’” when carrying a firearm for self-defense is “deemed a crime unless one can preemptively convince a state official that she enjoys an especially good reason for wanting” to do so.

So the clear issue is public carry; and whether that right is both protected, and applicable to the states.

The justices in New York State Rifle & Pistol said:

1. Violation of the 14th Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.

2. In District of Columbia v. Heller, 554 U. S. 570, and McDonald v. Chicago, 561 U. S. 742, the Court held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. Under Heller, when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.

3. The court rejects any means-end testing and imposes a single step in the analysis: The test that the Court set forth in Heller and applied, requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.

This won’t help us yet.

So, you understand, the state law still governs what we do in this state; and unless you want to be a test case, don’t celebrate quite yet.

COLORADO Article II, Bill of Rights.
The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.

In Colorado this expressly means you cannot display a weapon in public.

In fact several cases say that same thing: “No absolute right to bear arms.”
The law will continue to ban ‘dangerousness’ in a weapon like a short shotgun.

Put simply however this doesn’t appear to describe a constitutional right at all, for Coloradans, and statutes make that right even weaker;

Disorderly Conduct: C.R.S. 18-9-106(f).

(1) A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly:
(f) Not being a peace officer, displays a deadly weapon, displays any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon, or represents verbally or otherwise that he or she is armed with a deadly weapon in a public place in a manner calculated to alarm.

Offense can be public if you are on your own private shared road, since public is not barred; according to a recent Jefferson County case.

Alarm is not defined by you. It’s by the public, and in particular by both a DA and Judge; many of whom formerly worked as District Attorneys.

Look at CRS 18-3-206 — Menacing: even semblance of a firearm, or mention of a firearm is sufficient.

(1) A person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury. Menacing is a class 3 misdemeanor, but, it is a class 5 felony if committed:
(a) By the use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon; or
(b) By the person representing verbally or otherwise that he or she is armed with a deadly weapon.

This does not explore or launch into all the ways the new ordinances in various cities (Boulder, Lakewood, Denver) may now be vulnerable to challenge. Please consider that when the U.S. Constitution moves, each state then moves in response, very slowly, and very cautiously. Colorado will likely be no different. The law here will respond very slowly to this new constitutional right, but please keep in mind that each of our state laws remains ‘on the books’ as they say, and in force until overturned or amended.

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