Courthouse Steps Decision Teleforum: NY State & Rifle Pistol Association Inc. v. City of New York

Criminal Law & Procedure and Civil Rights Co-Sponsored Practice Group Teleforum

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Please join Amy Swearer of the Heritage Foundation and David Thompson of Cooper & Kirk for a discussion of the Supreme Court’s recent decision in NY State & Rifle Pistol Association Inc. v. City of New York.  The presenters will cover the contents of the decision, its import, and the future of Second Amendment litigation at the Supreme Court.

Featuring: 

David Thompson, Cooper & Kirk 

Amy Swearer, Legal Fellow, Meese Center for Legal and Judicial Studies 

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Micah Wallen:  Welcome to The Federalist Society's Teleforum conference call. This afternoon's topic is a Courthouse Steps Decision Teleforum on New York State & Rifle Pistol Association v. City of New York, New York. My name is Micah Wallen, and I'm the Assistant Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the experts on today's call.

 

Today, we are fortunate to have with us David Thompson, who's a managing partner at Cooper & Kirk. We also have Amy Swearer, who's a Senior Legal Policy Analyst at the Meese Center for Legal and Judicial Studies at the Heritage Foundation.

 

After our speakers have their opening remarks, we will then open up the floor for an audience Q&A. Thank you for sharing with us, and Amy, the floor is yours.

 

Amy Swearer:  Thank you so much to The Federalist Society for hosting this teleforum and to David for joining and for all of you for joining as well today.

 

So, I think when the Supreme Court took on this case earlier in the year, there was certainly a lot of excitement for the Second Amendment community. It had been about 12 years since Heller and 10 years since McDonald. And then, that decade since that the Court took on one Second Amendment case in Caetano, but really not much happened. Many lower courts continued to uphold a lot of gun control regulations that, I think, many people thought were constitutionally suspect under Heller and McDonald.

 

So a lot of Supreme Court -- excuse me, a lot of Second Amendment advocates, I think, were very hopeful that this case would sort of set up the next logical progression, and at least give some sort of framework for the Second Amendment outside the home, and build on Heller and McDonald. But, alas, it was not to be. So, to put it succinctly, this case more or less ended up as a wash. Not a loss, but a wash and we are effectively right back where we started.

 

So, I think many people listening to this teleforum probably have a decent understanding of the facts in this case, but I think it's worth going over just briefly as a reminder. So this case was about a New York City ordinance for handgun owners with what is called a premises permit. So not a carry permit, but just a permit to own a handgun inside their own home. Under the ordinance, people with this premises permit could have the handgun in their home and basically, nowhere else. They could transport it to one of seven gun ranges inside the city limits or to a gun smith and that's about it. So they couldn't take it to a second home. They couldn't take it to closer, more convenient ranges outside the city and they couldn't take it to competitions outside the city.

 

So, in 2013, several gunowners commenced this lawsuit saying that this restriction violated the Second Amendment, and then, through seven years of litigation, the city adamantly defended this law as consistent with Heller and McDonald. Essentially saying, "Yeah. Well, residents can have a handgun inside their home and that's all the Court said we had to do."

 

It also justified this law with some pretty far-fetched public safety theories. Essentially, this idea of, well, if gun owners can travel to more places with their guns, there's more opportunity for them to get into violent confrontations along the way. It's harder for law enforcement to determine if they're using traveling to the range, or to another home, as a pretext for in engaging in criminal activity and those sorts of things.

 

And so, again, through seven years of litigation, both the district court and the Second Circuit essentially bought the city's argument, hook, line, and sinker. And I think, many people thought that might be it because again, the Court hadn't taken on a Second Amendment case in ten years at this point. And then, as we all know, the Court granted certiorari in this case. And at that point, New York City, which had adamantly defended this law said, shoot. It saw the writing on the wall, and seemed pretty clearly to have expected it was going to lose the case on the merits. This was probably, at this point, the most restrictive law in the nation.

 

So what New York City appears to have wanted to do was to avoid a broad ruling about the scope of Second Amendment outside of the home that would have endangered its other gun control laws. And, so, despite having vigorously defending its law, it now changed that law. It not only changes the law, but the state itself passed a law that would've made it much more difficult for New York City, if not impossible for New York City, to rechange it back.

 

So New York City essentially defined, you can now travel if you have a premises permit. You can travel outside the city, to a second home, to gun ranges outside the city, at least, and so far, as that travel is reasonably necessary to get there. So, then, there ended up being a lot of questions about what does that mean?

 

And the case, really at that point, turned into an argument over whether the Court had to dismiss the case as moot, about whether the meaning of this new ordinance was constitutional. What did this mean? A lot of the factual arguments that were coming up. And, I think, a lot of people suspected that if the Court were going to dismiss it as moot, they would have done so prior to oral arguments. Perhaps, even then, immediately take up a new Second Amendment case for this term.

 

So, I think, last week's opinion came as a disappointing surprise to a lot of people who expected that if the Court went through oral arguments, it was going to get to the merits. What we ended up with last week, was a majority opinion. It was fairly short where the assumption is that the case was dismissed, sent back, remanded as moot. Though the dissent points out—and I think correctly—the majority opinion doesn’t explicitly say this is an issue of a case being remanded because of mootness, that we're sort of left with to presume it based on the some of the other arguments there. And, it's a fairly short opinion.

 

I think the more interesting nugget here comes from the Kavanaugh concurrence in the dissent. So in the Kavanaugh concurrence, you had Justice Kavanaugh joining with the Chief Justice, and then the more liberal wing of the Court, ultimately joining with them on the procedural issues of mootness. But, he did write a concurrence that ended up being a bright spot, a bit of a silver lining, where he now has become the fourth Justice to really express a desire for the Court to take up these sorts of Second Amendment issues, and sooner rather than later.

 

So he pointed out that he shares the defense concern. That some of these lower courts—in federal and state courts—are not properly applying Heller and McDonald, and that the Court really does need to address this issue soon. And he even points out—as I hope that David will go over—that there are several Second Amendment cases with petitions now pending before the Court that would make, sort of, good cases for the Court to take up.

 

So there was a three-Justice dissent. So this was a dissent written by Alito and joined by Gorsuch and Thomas. Thomas joined in part, but in the vast majority of this opinion. So they would not have found that the course -- that the case was moot. They would have found that the respondents, the city in this case, failed to meet this very heavy burden of showing that it was impossible for the Court to grant "any effectual relief," whatever, to the prevailing party.

 

So in their view, the petitioners had asked for unrestricted access to the out-of-city ranges and second homes. And the amended laws restriction to this, this idea of reasonably necessary travel, did not clearly grant that unrestricted access. And, moreover, they note that the Court has generally been very weary of attempts to manufacture mootness in order to avoid adverse decisions. Which again, I think, it was fairly clear here, that was New York City's goal was to avoid a very adverse decision.

 

They would have proceeded to the merits, and in short, would have found the city's violation of the Second Amendment was, in their opinion, not a close question. So in their view, the city couldn't point to any evidence of laws in place during the Founding era that restricted gun owners to practicing inside city limits. They also, in a section joined -- sorry, not joined by Thomas -- Alito and Gorsuch sort of called out the city's public safety arguments and some of the absurdity and complete substantiation of that evidence.

 

So that's sort of where we were left with this opinion. Now, where does this leave us sitting in terms of a Second Amendment legal framework for lower courts? Again, it leaves us right back where we started. So in some respect is feels like a loss for gun owners and a win for New York City. But, I think, that's because this was the absolute best case scenario for New York City. I don't think anybody really expected that if the Court got all the merit, that it was going to uphold the ordnance. And, so, at that point, you know, if the Court had gotten to the merit, I think, the best New York City, and frankly, the best other gun-control-happy states, could have hoped for, was a very narrow ruling that said, "We won't say where the line is, just that this particular restriction crosses it." So it feels like a loss because we did not even get that much out of the Court after ten years of waiting. But, I think, when you look at the facts, in reality, this was a draw even if it was a disappointing draw.

 

In the end, New York City did walk back its restrictions. It did give lawful handgun owners significant concessions, and it did so, I think, on a very obvious fear that if it didn't give these concessions, it risked a holding that could have potentially endangered a lot more of its gun laws.

 

And, we did get a fourth Justice saying—going on the record—saying we need to address this issue. We need to take up a Second Amendment case and, as I'm going to turn it over to David here in a second to talk about, we do have a lot of potential Second Amendment cases in the pipeline that I think provide, in many respects, a much cleaner opportunity for the Court to issue a broader, more meaningful ruling and, I think, we might have gotten in this case. So with that, I'll turn it over to David to talk about, sort of, where we go from here and what we might be able to expect from the Court going forward.

 

David Thompson:  Thank you, Amy, for that excellent summary. That's super helpful and a great springboard. I'm just going to add a couple of footnotes.

 

Number one, on the mootness claim, I know that the Chief Justice has come under some very heavy criticism. I believe the Wall Street Journal had an editorial claiming that he may have been rolled by an amicus brief filed by Sheldon Whitehouse, suggesting that the Court would be politicized if it reached the merits here. I don't think -- I think that criticism is very unfair. I believe the case was moot after New York City, and more importantly, New York State passed legislation precluding New York City from going back. And so, I wasn't surprised by the result and candidly, I'm not disappointed by the result either because this was an unusually narrow and peculiar law.

 

I don't know of any other analog, and I think there was a concern that it might -- we might get a decision like Heller that just says, you know, "This is such an outlier. We don't even really need to provide a framework for other laws." And so, I think it's really going to come to bite New York City and New York State that they've done this, and played these games because the thing I'm going talk about in a moment, there are a number of other cases which are absolutely cert worthy. I believe one of them will be granted cert -- and they're going to have much more positive impact for those who believe in the Second Amendment.

 

Another thing to note about this decision, was Justice Alito's dissent. In Part IV, he turns to the merits, and in IV.A he looks at the history and text and concludes, there's nothing in history that would serve as a basis or justification for this type of law, and consequently, he said the law is invalid under Heller and that's the end of the matter. And that's certainly the history and text framework that anyone who's faithfully applying Heller would engage in.

 

He then, in section IV.B, went on to analyze the paper-thin justification that New York City had offered to defend the law and just rips them apart piece by piece. And Justice Thomas did not join that part of the decision. And so now, I know some people have thought, "Well, what's up with that?" I mean is -- and I think Justice Thomas is sort of signaling you don't look at anything other than text and history. That's what Heller said. That's the end of the matter. This law failed under that test. Game over.

 

Is Justice Alito and Justice Gorsuch, are they taking a different view? I don't think so. I think they were, to use the words of General Patton, 'making the rubble bounce.' And, they were just showing that, look, even under New York's own reasoning there is no justification and they would lose. So I don't think there's anything worrisome about the destruction and dismembering of New York City's arguments.

 

So let's look to the future, and to do so, take stock of where we are. As Amy indicated, it's really been 10 years, and candidly 12, since we've had any meaningful feedback from the United States Supreme Court, and it's really high time that they take another case. We are seeing the lower courts engage in massive resistance. It's really hard to think of another area of constitutional law where the lower courts have systemically engaged in this sort of defiance in the last 50 years. If you go beyond 50 years, you can think of presidents, but not in the last 50 years. This is truly extraordinary. And the method of defiance that we are seeing is a so-called two-step framework with interest balancing.

 

And I would really commend to everyone listening that you go out and you read the outstanding short article that my two colleagues, Joel Alicea and John Ohlendorf, put together on tiers of scrutiny. And in that piece, they proved that, number one, tiers of scrutiny are totally A) historic, and number two, they have always been used as a method to empower judges to clip back on the rights that the Founders meant for all of us to enjoy. So they've really destroyed the idea that tiers of scrutiny should apply anywhere in the Constitution, but certainly should not be extended to the Second Amendment.

 

The lower courts have had some truly ludicrous justifications for this. They've said, on some occasion, they've said, "Well, that we can't answer this question. We can't strike this down because we don't have any explicit guidance from the Supreme Court." But, of course, Heller gave plenty of explicit guidance. And courts all the time look at questions—a first impression—even if they didn't have explicit guidance. So we're seeing this massive resistance. I believe it's high time that the Supreme Court take a case, and they will take a case for a couple of reasons.

 

Number one, there are cases before them that fit squarely within the traditional criteria for granting cert. And number two, I believe the Supreme Court does not want to reward the gamesmanship and bad behavior of the City and State of New York.

 

So what are the cases that have been held? Because, since this petition was granted, there are -- in New York City, there are a number of other petitions that have been held and are pending before the Court and the leading ones -- and the area where I believe it's most likely that we'll see the grant is in carriage.

 

The Court in Heller dealt with the word 'keep' and they signaled what the word there meant as well, but certainly they dealt with 'keep,' now they need to address what 'bear' means. This is a super important right. There are tens of millions of American's today who cannot exercise that fundamental right because of laws in places like California, New York, New Jersey, Massachusetts, and Maryland. And, there is also a clear split in authority.

 

We've got the First, Second, Third, and Fourth Circuits saying that there can be de facto bans on the right to carry. And, we've got the D.C. Circuit in an identical type of law in the Grace and Rand decision saying exactly the opposite and striking down D.C's laws. And D.C., as you all may know, did not file a cert petition.

 

Obviously, they, like Illinois, in the aftermath of the Moore and Shepard cases years before, had decided they did not want to take this case to the Supreme Court. They knew that they were going to be in a lot of trouble if the Supreme Court did grant cert. And so, they didn't seek cert, and immediately after they declined to grant cert, we filed in New York, New Jersey and Maryland saying, "Number one, you need to rule against us, and please rule against us quickly because we're going to file a cert petition, now that we have a split in authority."

 

And so, we did that, and there are cases in -- several cases in New Jersey pending, one we filed that's called Rogers. There's a case in Maryland pending called Malpasso. The New Jersey and Maryland cases are essentially identical so, I don't really have a view as to which one the Supreme Court would take. There's also a case called Gould, which I argued in the First Circuit. And that deals with the restrictions in Brookline and Boston. Boston is a little bit different than New Jersey and Maryland, in the sense that if you're a lawyer or a doctor or a police officer, you're allowed to carry a firearm. So it's not quite as sweeping a ban, but for those that aren't lawyers and doctors and police officers, it is a ban. And so, I think, the Court could take any one of those cases and we will have a great chance of success.

 

If we look at the text as I've indicated. It's right there, 'keep and bear' is a fundamental right. If we look at the history, we see that self-defense, is the critical -- one of the critical purposes behind the Second Amendment, and obviously there's, as Judge Posner pointed out in the Shepard and Moore cases, there's at least as much need for self-defense outside the home as there is inside the home. If we look at historical practices, we can see the founding generation understood that they had a right to carry firearms.

 

George Washington frequently carried his pistol. John Adams, in his speeches in court for the -- during the Boston Massacre trial proceeding, acknowledged that the citizenry had a right to bear arms. Thomas Jefferson said to his nephew, "Let your gun be your constant companion." And, there were no bans on carriage at the time of the Founding, and indeed, there were laws that required, in many instances, individuals to carry firearms. Indeed, the only thing the other side can point to, is a handful of outlier jurisdictions after the Civil War where racists were trying to disenfranchise and disarm the freedmen and a couple of towns in the Wild West where corruption was running rampant.

 

And so you put it all together, there's just an overwhelming case that we have tens of millions of Americans whose rights are rights are being violated. We've got a clear split in authority and we've got some very bad behavior from some of the same jurisdictions whose laws are an issue. And so, I think, we put that all together, you're probably looking at a grant of cert in a carriage case in the next couple of weeks.

 

Now, there are a couple of other cases up there. One category deals with modern sports rifles. Which, the left has tried to smear and defame by calling them so-called, assault weapons. These cases are Worman out of the First Circuit and the Wilson case out of Illinois. And these firearms are the most popular in America and, as you know, in Heller they said that, "Any firearm that's commonly possessed by law abiding citizens for lawful purposes cannot by banned." And so, if there's any meaning to that, then these modern sports rifles have to be upheld. The validity of them, and the right to own them. And so, this would be another type of case that the Court could take if it wanted to, incrementally built out its legislation -- excuse me, its jurisprudence. And so, I think, that's another area that we could see.

 

There are a couple of other types of cases out of states -- hand gun purchases. That's in a case called Mance. There's a question about nonresidents getting a carry license. That's in a case called Culp. But, I think, those are kind of secondary in light of the other cases that are in front of the Court. And so I would expect a carriage case or perhaps a modern sporting rifle case to be what's granted.

 

So with that, I'll turn it back over to Micah, to you and Amy, for any further comments and or questions from those listening.

 

Amy Swearer:  Yeah. David, thank you so much for that. Micah, if I could just cut back in real quick to just sort of dove tail off of David.

 

Micah Wallen:  Absolutely.

 

Amy Swearer:  I tend to be in agreement, but I think there are some tangential Second Amendment issues out there including, a case out of California dealing with some of their handgun registries and frankly, a law about microstamping that is impossible to follow. The technology for the microstamping law does not exist. But I think, really, the next natural progression, is almost certainly, a carry law dealing with the Second Amendment outside the home, and possibly, that issue of modern sporting rifles. So, I am in full agreement with David there, that I think that is the next natural progression that the Court probably takes on a similar case to the New York Pistol and Rifle case, but just sort of a broader law in terms of carry instead of these premises permits.

 

Micah Wallen:  We'll move to our first caller.

 

Clark Neily:  Hi, Clark Neily from the Cato Institute here, and co-council in the Heller case with Bob Levy and Alan Gura. I wanted to get some response to my take which is, that in fact, the Supreme Court really doesn't want to be perceived as being significantly in the Second Amendment business, or in the business of shaping gun policy in any significant way. I think it used this whole subject matter, you know, as a kind of a swamp and a culture war. And I think it's no accident that it denies so many more momentous cert petitions, and then to grant cert in a case involving, probably the least significant gun law in the entire country: the one at issue in the New York Rifle and Pistol case, why wouldn't they try to do that again? Why not grant cert in similarly insignificant case? Take that vehicle, tell the lower courts to up their standard of review, and then it can be the lower courts that, sort of, take the hit for striking down laws and not SCOTUS. It seems to me, that's where the Justices’ heads are right now. I suppose we can't know for sure, but that's -- those are the signals I think I'm getting. Any, any reaction?

 

David Thompson:  Well, I would say a couple of things. Certainly, that seemed -- that the Court seemed not to want to take a case when Justice Kennedy was on the Court. I don't know if the change in composition has had any impact. Obviously, we see Justice Kavanaugh and Gorsuch, both sort of stepping up in this most recent decision showing they have an appetite to take these cases. And I think the other thing that is different about the current moment beyond the composition of the Court, is that with the Rogers and the Malpasso and the Gould cases, we have a clear circuit split. Like it or not, they can't duck away from that. And so, when you look at the importance of the issue, and then you couple that with a circuit split, I just don't see there's any way that they don't take one of those cases.

 

Amy Swearer:  Yeah. I tend to agree with David here that I think for a while the biggest issue may have been -- or at least, we suspect that it was uncertainty about where Justice Kennedy may come down on this. I think it is certainly a good sign that now we have four Justices who at least seem to want to take on a more meaningful case. You know, I'm not sure that if that -- if the Chief Justice had his druthers that he would take it on, but I don't think there's reason to suspect that, you know, if you did have a cert grant that he would sort of undermine it in a way to avoid the political aspect of it.

 

And, there does just seem to be given the changed court dynamic and also just given the sheer number of these cases that have come up creating this circuit split. If I were a betting person, I don't think that's sort of the route that the Court would take. You know, I think the one route they did have to, sort of, take that more narrow approach, was in this New York Pistol and Rifle case. You know, and maybe, use that as sort of a narrow stepping stone to creating a framework for Second Amendment outside the home. But I just, you know, given now a fourth Justice saying we really need to take on this issue. I don't see that really being what's standing in the way of taking this on. I suspect that we will see a meaningful Second Amendment case for this next term.

 

Clark Neily:  Thanks a lot. I hope you guys are right. Appreciate it.

 

Micah Wallen:  All right. We'll now move to our next caller in the line.

 

Charles Nicolas:  Hi. My name is Charles Nicolas, of Charles Nicolas v. Gavin Newsom et al. For the past eight and a half years, I've been in federal court seeking to overturn California's open carry bans. I have a comment, question. First of all, as Justice Kavanaugh stated in his confirmation hearing, one thing is clear, and that is the Heller decision, does not protect the right to concealed carry. Concealed carry is not a right under the Second Amendment. Professor Volokh at UCLA Law is of the same opinion.

 

The only people who seem to be of the opinion that open carry can be banned in favor of concealed carry, are concealed carry lawyers of the National Rifle Association, of which Mr. Thompson is one, and commentator such as Amy Swearer, who repeatedly states on her Twitter account that concealed carry is a right and she even tweeted that people should carry it, a conceal weapon, to give them a secret advantage. That's the very reason the Heller decision said concealed carry is not a right, and by the way, under Ninth Circuit law, and California law, carrying a loaded concealed weapon for the purpose of using against another person is crime of moral turpitude. So what do we do about these so-called Second Amendment lawyers who want to ban the Second Amendment right, which is open carry?

 

David Thompson:  Okay. Well, I'll take a stab at responding to that. First of all, I don't represent the NRA. So I'd like to be clear about that, number one. Number two, what we have argued and we think is quite plainly correct, is that there is a fundamental right to carry a firearm outside of your home for the purpose of self-defense. Now, whether a state wants to choose to allow it to be open or concealed to carry is up to the state. They can make that decision, but that's the point that we've made. We think it's plainly right, and I think, everyone who's a serious lawyer in this area, agrees.

 

Amy Swearer:  Yeah, and to hop in off of David there. I'd like to quickly clarify what exactly the Court held in Heller. So Heller did not deal with any sort of carry ordinance, concealed carry permitting, anything of the sort. And so Heller actually dealt with a D.C. law at the time that prohibited law abiding citizens from possessing a handgun in their home under an operable condition. So it effectively -- you could not have a handgun unless it was rendered inoperable.

 

And so that actually dealt with, not carrying, but just mere possession of a handgun inside the home. So that the Court has not actually addressed directly this issue of carry in the scope of the Second Amendment outside the home. It certainly did not do so in Heller, though it did offer some guidance as to how we should be analyzing the scope of that right that I think was very helpful. But it did not actually address the Second Amendment outside the home. That is well beyond the facts of the case in Heller.

 

David Thompson:  Well, I just want to make a friendly elaboration on that. I think the carriage cases flow inexorably from Heller. Not only because of the analytical framework of emphasizing text and history, but also because of the analyst of Heller itself. It said what the purposes were of the Second Amendment which included, number one, self-defense. Of course, that includes outside the home, number one. Number two, it said hunting was a purpose. Again, that only happens outside the home. And number three, it said fighting off tyranny. And that also happens outside the home.

 

In addition, Heller quoted from Justice Ginsburg, one of her opinions saying that, you know, quoting what 'bear' means and made clear that it means carry. And so I agree with Amy that you read what's the technical holding of Heller? One could say, "Well, it deals with the law that was before it." But, it if you look at the logic and the reasoning and the framework, the carriage case is a slam dunk. And that's why Illinois took the extraordinary step of not seeking cert when the laws of the Shepard and Moore case and that's like D.C. took the extraordinary step of not seeking cert when their carriage law was struck down, because they knew they were going to lose if they got out of the lower courts and to the Supreme Court.

 

Amy Swearer:  Yeah, and to be clear, I agree with you David, that I think that the clear inference from Heller from the framework that is set up, is that there is absolutely a right to carry outside the home in some capacity. You know, I think that that's clear from Heller. My address was mostly to this idea that Heller, or at least as I understood, that the question to be that Heller had somehow said there was no right to conceal carry outside the home. I don't read that in Heller in any way. If anything, I agree with you that the inference is the opposite. That even though Heller did not deal with directly the scope of the right outside the home, that that is the inference. That there is a right to carry outside the home.

 

Micah Wallen:  All right. We'll now move to our next caller.

 

Caller 2:  Hi. Thanks a lot for the informative discussion. Appreciate it very much and I agree that Justice Alito's dissenting opinion was fantastic. So with that, here's my question about what the next case looks like in terms of carry. Will that, do you think, just affect carrying within your own state or will there be spillover effect from that case to interstate carry? And, for those of us who live in the D.C. Metro area and have to travel between Maryland, Virginia, and D.C. that's a very important question. So can you discussion interstate implications there might be from the next case, or do we have to wait, yet again, for a third or fourth itineration to get to interstate carry? Thanks.

 

David Thompson:  Well, I don't believe that in any of the cert petitions that are in front of the Court right now, that that issue is squarely teed up. But, at the same point, in each one of those cases where the plaintiffs to prevail, as I believe they will, then it would follow, inexorably, that you had a right to interstate carry. I mean, I don't know of any ban on carriage at the time of the Founding, let alone an interstate ban. And so, if they're going with the text and history tradition and approach from Heller, then it should be just follow right on the heels of whatever case they take and they decide. Now, as do other lower courts are going to continue to engage in massive resistance? I don't know about that. I'm hopeful not, but time will tell.

 

Amy Swearer:  Yeah, and I think too, one of the practical effects of striking down good cause carry laws, would be that it make it a lot easier for a lot more people to get concealed carry permits in their own state. Which would then in many respects enable them -- even in states that don't recognize the permit of that state, it would at least enable them often times to get a concealed carry permit in the other jurisdiction.

 

So, for example, in the District of Columbia right now, you cannot get a non-resident DC permit unless you first have a resident permit from the state in which you reside. So, for example, for myself, as a Virginian, I can fairly easily get a Virginia permit and then get my non-resident D.C. permit. That is not the case for people in Maryland because they would first have to get their Maryland permit. So if these good cause laws were to be struck down enabling more people in some of these states to get their concealed carry permit, it would open up a lot more non-resident opportunities just as a practical matter, but I think unfortunately, you know, again, I can see this sort of getting bounced around in a lot of lower courts. Sort of under the same auspices that we see courts still upholding a lot of questionable laws under Heller and McDonald.

 

Micah Wallen:  All right. We'll now move to our next caller.

 

Eugene Herman:  Hi speakers, thank you for your great work. This is Eugene Herman. I just have a question, what in your view are the limits that can be imposed on carrying? I'm from New Jersey and particularly I'm interesting in altering permits wait times. What do you think of the limits of how much the state can process a permit application? Thanks.

 

David Thompson:  Well, in terms of the limits on carriage there are some hints in the Heller decision about that including that firearms can't be carried in sensitive places. So I think, in the aftermath of whether it's Rogers, Malpasso, Gould, whatever. Whichever case they take. I don't think there would be a --- the Court is likely to say that there's going to be a right to bring a firearm into a federal court for example, or into a federal building. And in terms of wait times, I'm not sure that there's any litigation that's out there. I think that's one of those things that'll just have to wait and we'll have to see, but the first thing is to establish clearly in the Supreme Court that we have the right to carry and then we can work on recalcitrant states and jurisdictions that may be trying to thwart that right.

 

Eugene Herman:  Thank you.

 

Micah Wallen:  We'll now move to our next caller.

 

Howard Kline:  Hello, this is Howard Kline. I had a question regarding whether or not the -- we could use the jurisprudence or the right of privacy as a bases for justifying a fundamental right of self-defense over and above the language of the Second Amendment.

 

David Thompson:  I would really recommend not doing that because I think we've got text on our side. We've got it right there. We don't need to emanate in the penumbras and try to latch on the Supreme Court's jurisprudence where they have articulated some sort of amorphous right to privacy. We have something much better than that which is textual, promise, commitment and guarantee of the right to carry. And so, that's certainly -- and I think if we look at the current composite of the Court, that type of textual argument is going to resonate with them much more strongly than an indication of the right to privacy. So certainly, if they take the Gould case, I would not plan to make those arguments.

 

Amy Swearer:  Yeah. I'm in complete agreement with David here. You know, it's one of those arguments that you could theoretically make if nothing else existed but I think we have such a clear constitutional text, I think that's really where we benefit from sticking to that textual argument and that sort of historical understanding of that text. That to me, is the much clearer avenue and I think it sets up a much stronger protection than trying to find this sort of squishy penumbra. What are we actually talking about? Where are we getting this? What does it mean, sort of protection?

 

Micah Wallen:  That brings us to the end of our current questions in the queue. David or Amy is there anything else that you wanted to go over today?

 

David Thompson:  I was just going to say that I think this is an exciting time for those who believe in the Second Amendment. It has been a decade, if not 12 years, since we've had a meaningful pronouncement. I think we are just a couple of weeks away if not sooner from knowing which of these cases they're going to take and I'm filled optimism that we're finally going to have the original understanding of the Constitution vindicated with a respect to carriage.

 

Amy Swearer:  Yeah, and I'm absolutely right there with David, that this is certainly -- it's an exciting time. I think there's a feeling that we're finally coming to a place where we are going to get that meaningful Second Amendment case being taken up that addresses something beyond the more narrow confines of Heller and McDonald. Whether it's carry outside the home. Whether it's modern sporting rifles. I think there's just a lot there for the Court to take on either of those issues whether it's carry, whether it's so-called assault weapons bans, I think would be huge. It would be momentous for the Second Amendment community.

 

It would be certainly momentous for gun owners, particularly in a handful of states that are really coming down hard on gun owners at the moment, and frankly, for the last several decades. So it's exciting. I think for many people it's sort of a tangible, palpable feeling. And it's just a matter right now, of waiting and seeing what that case is. But I, again, there are a number of good ones that the Court can take on and we're excited about it.

 

Micah Wallen:  All right. Well, on behalf of The Federalist Society, I'd like to thank both of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.     

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.