The Supreme Court just announced that it will take a case designed to dangerously expand Second Amendment “rights.” The case is called New York State Rifle & Pistol Association v. Corlett and it would – and probably will – create a brand new constitutional right to carry concealed loaded handguns in public.
Right now, it’s a matter decided by state or local governments. In most red states, anyone without a felony conviction can get a permit to carry concealed weapons, and in some states, such people don’t even need any kind of license to pack heat. In most blue states, including New York, individuals have to show some level of legitimate need in order to obtain a concealed weapons permit.
The last Supreme Court ruling about guns was D.C. v. Heller, 554 U.S. 570 (2008), when Justice Scalia, writing for a 5-to-4 majority, invented a constitutional right to possess unlocked and loaded handguns in one’s residence “in defense of hearth and home.” (D.C. law had essentially prohibited handguns in the city. While rifles and shotguns were permitted in people’s homes, they had to be stored with a trigger lock.)
Heller does not in any way apply to carrying concealed weapons in the streets. So, there is no legal precedent for the Supreme Court to overturn the Second Circuit Court of Appeals, which upheld New York law. The only likely reason for SCOTUS to accept this case is to reverse the Court of Appeals by creating new Second Amendment “rights” out of whole cloth.
So that you can understand how the Supreme Court can invent Second Amendment law, let me take you down Justice Scalia’s dishonest little rabbit hole in the case of D.C. v. Heller.
Scalia had to employ not one but a series of lies. I’ll mention just three.
First, Scalia had to pretend that D.C. law prevented residents from using guns to defend their homes. He did this by claiming that it was illegal for residents to remove the required trigger lock from a rifle or shotgun – which would take only seconds – when threatened in a home. As Justice Breyer pointed out in his dissent, the District of Columbia agreed that it was legal to remove a trigger lock and otherwise make a rifle or shotgun ready to fire in that situation. So Scalia lied when he claimed that D.C. law prevented residents from using a gun for self-protection in the home. In fact, even if one buys the idea that the Second Amendment guarantees the right to “bear arms” in protection of a home, D.C. provided a legal and effective method to do so. Scalia does not deal with the fact that a trigger lock is easily removed or that a handgun is a terribly ineffective weapon for self-protection in a home, while a shotgun is the most effective. These simple facts would have gotten in his way.
Let me pause here and explain why I say Scalia “lied” rather than “ was mistaken.” Justice Antonin Scalia was a brilliant jurist. He was also one of the most ideologically-driven justices in Supreme Court history. He knew what he was doing.
Second, it is impossible to be an honest “originalist” and argue that people have a specific constitutional right to a handgun, rather than a rifle or shotgun. When the Second Amendment was adopted in 1791, nobody would have considered a handgun particularly useful for defense of a home. It would fire one shot, it was wildly inaccurate, it couldn’t be stored loaded for any length of time, and it would take too long to load. If someone was breaking into your house, you’d pick up a sword, axe or knife. If someone absolutely wanted to pick up a firearm, it would be a musket. The idea that the Founders were thinking of a handgun for home protection is ludicrous. Again, Scalia would have known this.
It would have been much simpler if Scalia was able to say that the Second Amendment protects the use of any firearm in the home. But he couldn’t do that because he couldn’t overturn the only other SCOTUS ruling on the Second Amendment, U.S. v. Miller, 307 U.S. 174 (1939). Miller had upheld the National Firearms Act of 1934, which strictly limits the civilian ownership of machineguns, silencers, bombs and sawed-off weapons. The defendant in Miller had been convicted of possession of a short-barreled shotgun. So, Scalia had to find a way to rule that while short-barreled shotguns are not covered by the Second Amendment, handguns are, a dicey proposition.
Scalia’s solution in Heller was to claim that the Second Amendment envisioned a militia, where able-bodied “men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” Heller at 52, quoting Miller. He then asserted that handguns are in “common use” in 2008, so they are covered when used in defense of one’s own home. Then he agreed with the Miller court’s decision that short-barreled shotguns were not “commonly used” for legal purposes in 1939, so they’re not covered by the Second Amendment. But realize, the short-barreled shotgun was not “commonly used” precisely because they were banned by the National Firearms Act five years earlier. It was an utterly dishonest circular argument. And to make matters worse for “originalists,” short-barreled shotguns were, in fact, commonly used in 1791.
Third, the firearms of 1791 – whatever the Founders intended – are legally not “firearms” today. In federal law, specifically 18 U.S.C. Sec. 921(a)(3), the term firearm “does not include an antique firearm” as defined in Sec. 921(a)(16). An antique firearm is one “manufactured in or before 1898” or a replica that doesn’t use modern ammunition. The D.C. law in Miller, like nearly all current federal and state gun laws, did NOT apply to any of the guns at the time of the Second Amendment’s adoption, or replicas of those guns. Residents could and still can defend themselves with the handguns or long guns of the late 18th century or even the late 19th century because current laws don’t apply to them. Scalia, the so-called “originalist,” knew this as well.
The bottom line is, Scalia got away with his lies and we must expect something similar when SCOTUS addresses the longstanding New York statute.
(Just incidentally, whatever SCOTUS rules about concealed weapons, the Court won’t have to worry about it’s own safety. Scalia already wrote a passage that guarantees the Second Amendment does not apply when courts and other government entities prohibit guns from their buildings. Yeah, he was also a hypocrite.)