I could carry a concealed gun in NYC. Which is ironic because I don’t own a gun.
I suppose they could rule that way - or deny cert altogether. But if they do rule that discretuoany issue is permissible but the application was not, I would think they’d need to add quite a bit of clarity around how the standard could be applied. My take that any application of the standards that prohibits the vast majority of otherwise law abiding folks would be prima faci unconstitutional.
Anything short of shall issue is ripe for abuse and many jurisdictions including New York City, Chicago, and many in CA would do whatever they can to prevent regular folks from getting a permit.
Throughout Heller numerous comparisons were made between the first and second amendment. If any of these types of restrictions were placed on permits for holding a protest or building a place of worship it would be outrageous. My hope is the court makeup remains unchanged for at least 1.5 years and the same thought process is continued here. Using Heller and McDonald I thing a favorable result is the most likely outcome.
Similar restrictions are placed on protest permits. Have a look at the Thomas case I liked to earlier.
Not to continue the analogy too far - but if there were similar guidelines defense used for permits as in Thomas that may survive - depending on the application as notes in Thomas. That decision recognized that discretion which showed patterns of abuse would be unconstitutional. The restrictions described must be content neutral and were really focused on logistical issues. No such complaint could be made in NY since the issuance of permits themselves within their current scheme has procedures in place.
Given the central nature of self defense to the second amendment and the fact that New York explicitly says that self defense is not sufficient to justify a permit can you conceive of a way that the permitting scheme in its current form does not run afoul of the 2nd ?
Where does it say self-defense is not sufficient to justify a permit?
From the cert petition:
(I added carriage returns and bolding because the copy/paste didn’t behave)
The appellate court also said that the self defense protections of Heller were limited only to inside the home, which I believe is a clear mis-reading of Heller. Heller stated that self defense interests are most acute in the home - which logically follows that they exist outside the home, though less acute.
That’s an interpretation of the statute, though, not a provision of the statute itself. I agree that the “home only” reading is going to be overturned, assuming cert is granted.
Those legal readings are controlling in NY. They are interpreting the statute, but are binding none the less, no? Those need to be overturned. If at the end of the day it is decided that “lawful self defense” is sufficient proper cause, I’d be fine with that. NY need not be shall issue if that is binding as to meet the definition of proper cause.
This is actually what happened in Sacramento County in CA. A few years ago, they were a virtually no issue county. After lawsuits regarding their discretionary issue scheme, and mounting evidence that their good cause statements were being approved and denied based on varying standards, they settled and agreed to accept self defense as good cause.
Unless the New York court held that the statute is inseparable from its reading (doubtful), SCOTUS will overturn the interpretation rather than the statute.
That’d be fine with me, keeping the good cause requirement, as long as a valid good cause is self defense. NY keeps its statute, and people can get permits for self defense. That’d be a favorable outcome. Apply that nationally and I’d consider that a tremendous win. Of course, even better would be striking down the whole discretionary issue scheme all together. 
“Self-defense” would in practice strike down discretionary issue, because anyone who goes out in public could make the claim.
Shhh…Yes, it would SCOTUS could do that without striking down the NY statute if they wanted to rule more narrowly and stay within the constructs of Heller.
Most things in CA don’t make sense, in particular their crazy gun laws. Pretty soon you guys will be shopping for 6-round mags.
I don’t see where discretionary permits is an issue under 2A. If it’s unconstitutional, it would be under 14.
I see this argument a lot, and I wonder about the reasoning behind it. Presumably the argument is that the invention of repeating arms makes guns simply too dangerous to be allowed to the general public. But no one would credit the same argument applied to freedom of the press: that single-sheet manual screw presses were fine, but cable TV and the Internet are “too dangerous” to allow. That’s because the 1st Amendment has been held to safeguard the general principle of freedom of speech and expression from government censorship, not merely a utilitarian matter of some mechanism being allowed. Totalitarian governments were in fact based on the principle that government should have a monopoly on speech and expression, and the results were dismal.
I think the problem here is that people get hung up on the 2nd Amendment thinking it merely states a prescription on a particular mechanism, guns. You see this when people say that you don’t have a right to own any other particular object, why a right to own guns? Gun proponents hold that the 2nd Amendment states a general principle just like the 1st Amendment does. This general principle might be worded to the effect that government shall not govern based on the powerlessness of the people; expressly that government should NOT have a monopoly on force, but should depend on the support- ultimately, the armed support- of a majority of the populace. A government that couldn’t remain in existence except by disarming the people would be one utterly without popular support.
Now a lot of people DO wish to turn over all right of armed force to the government, and if they’re an abiding supermajority, then they should prove it by amending the constitution, as previously said.
This argument is based on an illusion - that the people have the ability to overthrow the government via the use of personal firearms. That hasn’t been true since around 1800. The disparity between the firepower of citizen gun-owners and the government is overwhelming. As long as the government keeps the loyalty of the armed forces, it has nothing to fear from a possible armed revolution by the people.
If the right to keep and bear arms is based on being a check on government, then the Second Amendment is pointless. So modern gun rights advocates have wisely chosen to build on a more rational foundation of self-defense.
But by that logic all of the provisions of the Bill of Rights are pointless, since if the only thing preventing the government from flatly violating the Constitution is that it doesn’t want to, then we’re screwed.
Think of it this way: the Bill of Rights is a “tripwire”, a statement of principles that if the government ever violated them would raise alarms and red flags throughout the nation. Certainly a lot of people out there are taking what they perceive as infringement on the 2nd Amendment dead serious. You have the “Oath Keepers”, you have county sheriffs and state legislatures declaring they’ll refuse to recognize or enforce such laws.
No. Freedom of the press, freedom of speech, freedom of religion, freedom of assembly, and most other freedoms pretty much work in the way their authors intended. But if the intent of the authors of the Second Amendment was to guarantee the citizenry the ability to defeat regular military forces then the Second Amendment has failed in its purpose.
It’s important to note that the existence of a circuit split does not automatically mean SCOTUS will grant cert. SCOTUS has allowed a three-way circuit split on a major constitutional issue to stand since 1989 (whether evidence that a defendant remained silent prior to receiving a Miranda warning may be admitted by the government for other than impeachment purposes).
Yes, technically (assuming it is a violation), it would be a violation of the Due Process Clause of the 14th (the substantive right to keep and bear arms having been incorporated under McDonald v. Chicago.) It doesn’t change the analysis, though, just the formal pleading requirements.
Not quite. Finding that self-defense must be deemed a valid ground for issuance of a permit doesn’t mean the other requirements no longer need to be met.
It’s good then, that one of the core purposes of the 2nd amendment is self defense. See Heller.