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New York State Rifle & Pistol Association, Inc. v. Kevin Bruen: Defending limits on guns in public

    Case Information: New York State Rifle & Pistol Association, Inc. v. Kevin Bruen, No. 20-843 (Supreme Court brief filed September 22, 2021)

    At Issue: On November 3, the Supreme Court is hearing arguments in what will likely be a landmark  Second Amendment case. The New York State Rifle & Pistol Association, a state affiliate of the National Rifle Association, is suing the State of New York over its permit requirements for concealed carry of firearms. The plaintiffs argue that the license requirement, in particular the “proper cause” standard for issuance of these licenses, violates the Second Amendment right to bear arms. We argue that New York’s license requirement is consistent with the Constitution, and tracks Anglo-American historical traditions of lawful self-defense.  In District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court recognized an individual right centered on self-defense. However, neither opinion constitutionalized or rewrote the common law of self defense. So the right recognized in Heller and McDonald is a right to keep and bear arms for historically lawful self-defense purposes—and an understanding of those purposes clarifies the nature (and limits) of Second Amendment rights.

    Our Brief: Our brief argues that New York’s license requirement should stand. The Heller right to self-defense is “not unlimited” and does not allow a person to “keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Our brief covers the Castle doctrine, Necessity doctrine, and doctrine of excuse to demonstrate the long history of self-defense principles protecting New York’s right to implement a license requirement. This history demonstrates the constitutionality of New York’s proper-cause requirement in three respects: first, it reinforces the importance of the home/public distinction in self-defense law; second, it shows that the government has long imposed preconditions on lethal self-defense, especially in public; and finally, it refutes any assertion that the self-defense right is absolutely or solely the prerogative of individuals without state involvement.

    We further argue that departing from traditional self-defense principles would conflict with constitutional structure. The Constitution relies on the government and our democratic system, rather than citizens publicly carrying deadly weapons for violent self-help or vigilante policing, to ensure individual safety and strive toward public order. Self defense is limited in scope—since it may in some cases hinder rather than advance the Constitution’s public-safety purposes. If Second Amendment rights are expanded beyond their historical limitations, they risk colliding directly with core First Amendment protections: if more people are allowed to carry guns in more public places without establishing proper cause for doing so, it will become much more dangerous to speak, assemble, pray, or express controversial ideas in public settings, and thus necessarily chill the exercise of these rights. Furthermore, the impact of an expansion of the right to self-defense in public, like the one advocated by the challengers, would have a disproportionate, negative impact on communities of color, who are already suffering unacceptable rates of gun violence. For these reasons, we argue that the court should affirm the decision of the Second Circuit to uphold New York’s open carry licensing requirement.

    Read the full text of our amicus brief here.