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Supreme Court Watch: Can the Government Require That Citizens Prove the Need for Self-Protection in Order To Carry a Gun Outside the Home?

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Published on: August 12, 2021

WASHINGTON, D.C. — Can the government require that citizens prove they need self-protection in order to carry a gun outside the home? That is the question before the U.S. Supreme Court in N.Y. State Rifle & Pistol Assn. v. Bruen, which has been asked to decide whether the Second Amendment protects the right to carry a gun outside the home for protection and whether government officials should be able to pick and choose which class of citizens are deemed worthy of self-protection. In filing an amicus brief in N.Y. State Rifle & Pistol Assn., Rutherford Institute attorneys argue that the fundamental rights enshrined in the Constitution must be available to all citizens and not parceled out at the whim of government bureaucrats.

Affiliate attorneys Michael J. Lockerby, Eli Evans, W. Bradley Russell, A.J. Salomone, and John Sepehri of Foley & Lardner LLP assisted in advancing the arguments in N.Y. State Rifle.

“When considered in the context of prohibitions against the government, the Second Amendment reads as a clear rebuke against any attempt to restrict the citizenry’s gun ownership. As such, it is as necessary an ingredient for maintaining that tenuous balance between the citizenry and their republic as any of the other amendments in the Bill of Rights, especially the right to freedom of speech, assembly, press, petition, security, and due process,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “In this way, the freedoms enshrined in the Bill of Rights in their entirety stand as a bulwark against a police state.”

In response to the influx of European immigrants into the Northeast, and New York City in particular, New York State enacted the Sullivan Law in 1911, which made it unlawful to possess any firearm anywhere without a license and gave government officials broad discretion to decide who could obtain one. The law, which was used to deny immigrants in the early 20th century the ability to possess firearms, has remained on the books. New York State residents are required to have a license to possess a firearm and are entitled to a license unless good cause is shown. However, even persons with a license may not carry a firearm outside their home unless they obtain another license to do so, and then only if they can show “proper cause” for carrying a gun outside the home. As with the Sullivan Law, licensing officials are given broad discretion to determine who has “proper cause” for a license to carry outside the home, requiring an applicant to show they have a “special need” for self-protection. Two state residents applied for a license to carry a firearm for self-defense outside the home, citing a string of robberies and crimes where they lived. However, they were denied a carry license because they did not show a “special need” for self-protection that was different from other members of the general public. These residents and a state association representing firearms owners challenged the law, asserting that it violates the Second Amendment by requiring that persons show “proper cause” for carrying a firearm outside the home. However, the lower federal courts dismissed the lawsuit, ruling that the Second Amendment does not protect the right to possess a firearm outside of the home. On appeal, the U.S. Supreme Court agreed to hear the case. In their amicus brief, attorneys for The Rutherford Institute argue that state licensing officials should not be allowed to determine that only a “special class” of citizens is allowed to exercise the Second Amendment’s right to bear arms, which is a fundamental right belonging to all citizens.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.

The Rutherford Institute’s amicus brief in N.Y. State Rifle & Pistol Assn. v. Bruen

Article posted with permission from John Whitehead

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