Supreme Court Strikes Down New York Gun Law

The Supreme Court struck down a New York law that placed strict limits on carrying ...

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The Supreme Court struck down a New York law that placed strict limits on carrying a gun outside the home, ruling that Americans have a broad right to carry a handgun in public for self-defense. David and Sarah are together in DC, at The Fund for American Studies, to break it all down. Plus, we have a Supreme Court decision dealing with Miranda violations, and questions from law students from around the country.

Show Notes:

–Vega v. Tekoh

–New York State Rifle & Pistol Assn., Inc. v. Bruen

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  1. Michael.Shermanbklyn

    “Useful arts as opposed to Fine arts, those in which the hands and body are more concerned than the mind. Science and Art differ essentially in their aims—Science, in Mill's words, 'takes cognisance of a phenomenon, and endeavours to ascertain its law; Art proposes to itself an end, and looks out for means to effect it.'”

    My point stands. I think Scalia ignored the most basic rule of textual interpretation, every word was included for a reason. To ignore “militia” and substitute “self-defense” is disingenuous at best. A careful drafter would have excluded the prefatory language if they wanted the amendment to apply BOTH to the militia AND self-defense. By including “militia” the Framers MUST have had intended some emphasis on keeping and bearing in the context of participating in a well-regulated militia. Scalia has eliminated the application of the 2nd A on a militia and has applied it exclusively to self-defense. It doesn’t seem like the correct interpretation. It is far more logical that the Framers intended public safety to be determined by local government rather than by the individual acts of gun-bearing people.

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  2. burlapp

    The idea that the 2nd amendment was intended as an individual right to a gun for self defense is dubious and certainly not clear. There is not a single word about an individual right to a gun for self-defense in the notes from the Constitutional Convention or on the floor of the U.S. House of Representatives as it marked up the Second Amendment. Only four states out of thirteen had constitutions that protected the right to bear arms and only one (Pennsylvania) for personal self-defense. At the time, Boston made it illegal to keep a loaded gun in a home. Laws governed the location of guns and gunpowder storage. New York, Boston, and all cities in Pennsylvania prohibited the firing of guns within city limits. People deemed dangerous were barred from owning weapons. At the time Americans expected to be able to own a gun … they just did not expect the Constitution to address an issue that clearly had no relevance to federal authority. It seemed the 2nd Amend wasn't understood to protect an individual right to gun for self-defense but was understood to protect the individual right to a gun to fulfill the duty to serve in a militia. As for the right to bear arms, David Yassky notes: ‘Searching a Library of Congress database containing all official records of debates in the Continental and U.S. Congresses between 1774 and 1821 reveals thirty uses of the phrase “bear arms” or “bearing arms” (other than in discussing the proposed Second Amendment); in every single one of these uses, the phrase has an unambiguously military meaning." As Richard Posner points out, the lengthy discussion of the history of interpretation of the Second Amendment in Heller quotes a number of statements to the effect that the amendment guarantees a personal right to possess guns--"but they are statements by lawyers or other advocates, including legislators and judges and law professors all tendentiously dabbling in history, rather than by disinterested historians: more law-office history, in other words."

    That is why for two centuries the Second Amendment received little notice and scholars paid it little attention. Lawyers rarely raised it in court and for 218 years, judges overwhelmingly concluded that the amendment authorized states to form militias only. What changed was the political environment and the Justices. There was no greater urgency about allowing people to possess guns for self-defense or defense of property in 2008 than there was thirty years before, when violent crime was greater, or for that matter one hundred years ago. Before Heller, as Posner points out, liberal judges used loose construction to expand constitutional prohibitions beyond any reasonable construal of original meaning; and in Heller it was the conservatives' turn. Sadly, channeling Posner, constitutional decisions continue to be determined by the balance between liberals and conservatives on the Supreme Court despite their commitment to a mystique of "objective" interpretation.

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    ed74siasl

    Formerly domesticated birds establishing breeding colonies is a thing.
    If you haven't, you should watch "The Wild Parrots of Telegraph Hill." (2003, rated G)

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  4. Jesse Chan

    I don’t usually comment, but I just had to say thank you to Sarah for that amazing love letter to Houston. It warmed this lifelong Houstonian’s heart to hear dim sum, Baytown smells, and random peacocks mentioned on one of my favorite podcasts.

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    Mike D

    What is the case law on restriction of owning ammunition? It is quite clearly NOT stated as a constitutional right. If the court can take away a right simply because the constitution doesn’t explicitly grant that right, what is to stop them (besides political partisanship) from ruling that those who have the right to bear arms do not have the right to own ammunition for those arms? Or, perhaps they do not have the right to fire ammunition from those arms…. I’m not trying to be rhetorical here. I am truly curious what people much more knowledgeable than me have to say about this.

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  6. Alex W.

    Seems to me that NYC is not going to go quietly (see this local news clip, https://www.youtube.com/watch?v=upePFDKjcjU, in which NYPD spokesman John Miller pretty much admits they're going to drag their feet and place as many restrictions as they think they can). They will almost certainly prohibit licensed carry on public transit, which will amount to a total ban on public carry in practice, as it's pretty much impossible to get around without the subway here. Either of you care to predict how that would shake out? Given CA2's prior 2A decisions, likely to end up back at the court?

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    Dan Pierron

    I know it was an attempt at a sick burn, but if you are citing to the reasoning of Dred Scott to make your point, just who is getting burned?

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    Ben Connelly

    This was a very enjoyable discussion. I appreciated your breakdown of the various dissents and concurrences with Thomas. I agree with Alito this time about Breyer’s opinion. Sounds like both the majority opinion and dissent should have been written by a different member of the court.

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    Slp

    I'm exposing my ignorance here, the text of the second amendment does not contain any mention of self defense. And yet that is Thomas' main point. I must have missed something along the way.

    And... did I hear David correctly that there are still ways to legally ban guns from certain places? For instance court rooms, voting locations, schools, County commissioner and school board meetings, etc.

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    Jacob Heider

    I'm on tenterhooks for the emergency pod on _Dobbs_. Not to take anything away from this episode, but _Dobbs_ is a once-in-two-generations moment on the court and I NEED MY FIX!!!

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