WASHINGTON, D.C. (November 3, 2021) — The United States Supreme Court heard oral arguments today in the case of NYSRPA v. Bruen, a lawsuit challenging New York’s “proper cause” requirement and “may-issue” scheme for the issuance of licenses to carry firearms in public. This important case could not only help restore the right to carry firearms in hostile states like New Jersey, California, Hawaii, and Maryland, but also provide key instructions on the mode of scrutiny that lower courts must use when evaluating Second Amendment claims. Firearms Policy Coalition (FPC)’s brief in the case, joined by preeminent Second Amendment scholar and Antonin Scalia Law School Professor Emerita, Joyce Lee Malcom, and authored by former Texas Solicitor General and supreme court practitioner, Scott A. Keller, can be viewed here and at FPCLegal.org. Legal experts from FPC Law are available for interviews.
“Today’s arguments reflected that all of the parties, including New York, agree that there is a Second Amendment right to bear arms outside the home,” said Adam Kraut, FPC’s Senior Director of Legal Operations. “While the ultimate outcome is impossible to predict, some justices’ questions showed an acute interest in the proper test to be applied in Second Amendment challenges. FPC has consistently advocated for the Court to make clear not only that there is a fundamental right to bear arms in public, but that lower courts must apply Heller’s categorical test, based on the text of the Second Amendment as it is informed by history and tradition. FPC is fighting for the right to keep and bear arms in dozens of cases, and we will continue to aggressively litigate challenges to unconstitutional laws throughout the country.”
“Today the Supreme Court heard arguments in what may become one of the most important cases it ever decides. A majority of the Court appears poised to restore the original meaning of the right to bear arms and secure the natural right of self-defense,” said Joseph Greenlee, FPC’s Director of Constitutional Studies. “Nevertheless, while we are optimistic about the outcome in this case, FPC will continue to execute our mission to advance individual liberty and remain eager to present the Court with its next major opportunity to restore Second Amendment rights.”
“After today’s arguments, it’s clear that bans on the Second Amendment right to bear arms are unconstitutional and their days are numbered,” said Brandon Combs, FPC founder and President. “Anti-rights states like New Jersey, California, Hawaii, New York, and Maryland will almost certainly be forced to respect the Constitution and allow their law-abiding residents to carry handguns for self-defense in public. This fight for freedom is one of the last battles of the American Civil War, and thanks to the brilliant constitutional litigator Alan Gura, as well as courageous challengers like Otis McDonald, it seems all but certain the racist and discriminatory gun control laws that were enacted to prevent Freedmen and other disfavored groups from carrying guns to defend themselves will fall. FPC is proud to have fully supported this case from its initial petition through the merits phase and oral argument, and we are eager for human liberty to prevail. We look forward to further expanding on our Second Amendment litigation program, already the most ambitious in history, in the weeks and months to come.”
In July, FPC filed its merits-stage brief opposing New York’s scheme, arguing that the English right to have and use arms at the time of the American Founding included the right to carry weapons outside the home for self preservation and defense. As FPC’s brief shows, the Second Amendment unquestionably protects the right to bear arms outside the home. And since the Supreme Court’s 2008 D.C. v. Heller decision, many courts have improperly applied interest-balancing tests like “intermediate scrutiny,” and some go even further in watering down the right to keep and bear arms—or ignoring it completely. In a fiery dissent from the Court’s denial of certiorari (review) in a challenge to California’s 10-day waiting period ban, Justice Clarence Thomas said that the Ninth Circuit had applied nothing more than “rational-basis review,” and that while the “Ninth Circuit claimed to be applying intermediate scrutiny, ... its analysis did not resemble anything approaching that standard. It allowed California to prove a governmental interest with speculation instead of evidence.”
This, FPC says, cannot continue. And if the Court ultimately holds that New York’s carry license laws are unconstitutional, and instructs lower courts to apply the Court’s categorical approach laid out in Heller, many unconstitutional laws will be ripe for challenge. FPC Law, the nation’s largest public interest legal team focused on the Right to Keep and Bear Arms, has already filed dozens of challenges to federal, state, and local gun control laws and is working to file dozens more in the coming months in anticipation of the Court’s decision.
The Court’s decision in NYSRPA v. Bruen will likely be announced next spring, before the current term ends on June 30, 2022. Decisions in major cases, like this one, are often announced in June.
FPC is currently litigating numerous challenges to restrictions on the right to carry arms in public, with many more being prepared or in the planning phase. Some current right-to-carry lawsuits include:
- A challenge to New York City’s ban on handgun carry in public (Greco v. New York City)
- Challenges to New Jersey’s ban on handgun carry in public (Bennett v. Davis, Francisco v. Cooke)
- A challenge to Maryland’s ban on handgun carry in public (Call v. Jones)
- A challenge to Minnesota’s ban on handgun carry in public by adults under 21 (Worth v. Harrington)
- A challenge to Illinois’ ban on handgun carry in public by adults under 21 (Meyer v. Raoul)
- A challenge to Georgia’s ban on handgun carry in public by adults under 21 (Baughcum v. Jackson)
- A challenge to Tennessee’s ban on handgun carry in public by adults under 21 (Basset v. Slatery)
- A challenge to Pennsylvania’s ban on handgun carry in public by adults under 21 (Lara v. Evanchick)
Below are links to some very important merits-stage briefs filed in the NYSRPA v. Bruen case that explain why the New York “may-issue” scheme and “proper cause” requirements are unconstitutional, and what the relevant history means for the application of the right to bear arms in public:
- Brief of the Firearms Policy Coalition and Professor Joyce Lee Malcolm (English history)
- Brief of amici curiae Professors of Second Amendment Law, Weld County, Colorado, Weld County Sheriff Steve Reams, Independence Institute, and Firearms Policy Foundation (Founding-era history)
- Brief of California Gun Rights Foundation (mode of scrutiny)
- Brief of Amici Curiae William English, Ph.D. and The Center For Human Liberty (social science/crime data)
- Amicus brief of FPC American Victory Fund, et al. (19th-century history)
- Amicus brief of Madison Society Foundation, Inc. (on so-called “sensitive places”)
FPC also filed a brief supporting the petitioners in Young v. Hawaii, in which the 9th Circuit Court of Appeals held that there is no right to carry in public. That case is currently being held by the Court.
Individuals that are interested in joining FPC in the fight against tyranny can become a member of the FPC Grassroots Army for just $25 at JoinFPC.org.
For more on FPC cases and other legal action initiatives, visit FPCLegal.org and follow FPC on Instagram, Twitter, Facebook, YouTube. FPC and its FPC Law team are the nation’s next-generation advocates leading the Second Amendment litigation and research space. Some FPC legal actions include:
- A challenge to California’s ban on so-called “assault weapons” (Miller v. Bonta) that resulted in a post-trial judgment and permanent injunction against the challenged regulations, the first such victory in United States history
- A challenge to Cook County’s ban on so-called “assault weapons” (Viramontes v. Cook County)
- A challenge to Maryland’s ban on so-called “assault weapons” (Bianchi v. Frosh)
- A challenge to California’s handgun “roster”, microstamping, and self-manufacturing ban laws (Renna v. Bonta)
- A challenge to Massachusetts’ Approved Handgun Roster and Attorney General's Handgun Sales Regulations (Granata v. Healey)
- A challenge to San Diego’s ban on home-building firearms and precursor parts (Fahr v. San Diego)
- A challenge to Delaware’s ban on home-building firearms and precursor parts, as well as 3D files (Rigby v. Carney)
- A challenge to the federal ban on the sale of handguns and handgun ammunition to adults under 21 years of age (Reese v. ATF)
- A challenge to New York City’s ban on electronic arms (Calce v. New York City)
- A challenge to California’s firearm purchase rationing ban (1-in-30 day limit) (Nguyen v. Bonta)
Firearms Policy Coalition (firearmspolicy.org), a 501(c)4 nonprofit organization, exists to create a world of maximal human liberty, defend constitutional rights, advance individual liberty, and restore freedom. FPC’s efforts are focused on the Right to Keep and Bear Arms and adjacent issues including freedom of speech, due process, unlawful searches and seizures, separation of powers, asset forfeitures, privacy, encryption, and limited government. The FPC team are next-generation advocates working to achieve the Organization’s strategic objectives through litigation, research, scholarly publications, amicus briefing, legislative and regulatory action, grassroots activism, education, outreach, and other programs. FPC Law (FPCLaw.org), the nation’s largest public interest legal team focused on the Right to Keep and Bear Arms, lead the Second Amendment litigation and research space.