Saturday, September 25, 2021

Gun Politics: Terrible Arguments for Gun Control in the Supreme Court NYSRPA v Bruen Case

(Note: What follows below is a transcript of the video)

So this is going to be a big divergence from the normal sort of topics that I cover on this channel. Today I’m going to talk about gun politics in the upcoming Supreme Court case New York State Rifle and Pistol Association vs. Bruen. If you were expecting any philosophy of religion here, I’m afraid you’ll have to move on. If you want to hear about gun-control arguments that are so bad they rival the sort of drivel that you’d hear from a Young Earth Creationist or Anti-Evolution apologist, then strap in! I’d appreciate it if you let me know how you feel about non-philosophy of religion videos on my channel in the comments.

If you hadn’t been able to guess from my normal videos or my twitter feed, I’m pretty liberal, but actual people don’t line up perfectly with their parties. I’m a pro-gun liberal who still largely votes Democrat because on the total balance of issues, they suit my priorities best. This is just like a conservative who would support increased taxes on the rich and corporations, but votes Republican because of culture issues.  However the issue has become more acute for me in the last year and a half when I became a gun owner because of the pandemic and I’ve become more interested in second amendment politics.

This issue effects me directly because I live in New Jersey, one of the most anti-gun states in the nation. This means that much like 7 other states, including New York, I am de-facto banned from getting a concealed carry permit. This is because these states are “may-issue”, where they can subjectively deny any permit application if the officials feel that the person applying does not have a "good cause" or “justifiable need” for self defense. In practice this means “no-issue” to 99% of the population, but I’ll get into that a bit later.

This is in contrast to 42 other states that either allow someone to carry concealed without a permit of any kind or “shall-issue” states where once a person has completed whatever requirements the state puts out - typically a training class and/or live fire exercises - the state must issue the carry permit.

The Bruen case is going to be heard by the SCOTUS on November 3rd and the case is challenging the "good cause" requirement to be issued a carry permit in New York City. 

An incredible amount of amici briefs have been filed by both sides, these are basically arguments sent to the justices where various groups or organizations state their support for one side or the other. What I wanted to focus on was the brief urging the court to uphold New York’s restrictive law that was filed by over 150 Senators and House members, because one would think they would at least only sign on to good arguments. 

What I found was simply an embarrassing set of arguments that dance around the issue rather than address it directly, while trying to avoid facts they’d rather not discuss.

I’ll put a link to the brief in the description box so you can follow along and verify what I’m saying is accurate. With that said, let's tackle their first mistake. 

On page 19 in the document, 37 in the PDF we get to this gem:

“Unrestricted Concealed Carry Can Harm First Amendment Rights

Civilians carrying guns into communal spaces can chill or shut down the rightful expressions of free speech and political protest that the First Amendment is intended to protect. Requiring licenses to carry concealed guns in public, and imposing reasonable conditions on licensure, is an important and effective tool for preventing these civic harms. The inability to regulate concealed firearms in public would put legislatures at a severe disadvantage in their mandate to “protect the public sphere on which a constitutional democracy depends.”

The section goes on to describe a peaceful protest for racial justice in the summer of 2020 in Omak Washington that then ran into an unauthorized and armed militia group facing them with others on nearby rooftops that the protestors thought were “ready to act as snipers”.  They argue that this causes a chilling effect on the protestors. 

Now on its face, this doesn’t immediately sound like a blunder. I don’t intend to debate laws permitting the open carrying of firearms, specifically in this case rifles. In fact I can completely grant every premise here and it has absolutely ZERO bearing on the case at hand.

This is because the arguments the NYSRPA are making are about the "good cause" clause for getting a New York City permit to concealed carry a handgun! The state will still be regulating who can carry.

Nothing in the case is requesting that New York must amend its laws to permit the open carrying of rifles or long guns, it doesn’t even challenge the notion that people have to apply for a permit - it challenges the portion of the law that New York and other states use to deny permits to otherwise law abiding citizens who can demonstrate they can safely handle a handgun. 

If you have a concealed carry permit and you pull out your weapon, that’s known as brandishing which is itself a crime unless the concealed carry holder had what the law says is a “reasonable fear for their life or the life of a 3rd party”. For reference a jury is who decides what fears are reasonable or not in specific cases. 

So if the Supreme Court were to strike down the law then all it means is that New York and the other 7 states will have to become shall-issue states for concealed carry permits only, not permitless carry or permit the carry of long guns of any kind. They will still only allow carry by license. It doesn’t mean protesters will have to face an unauthorized militia. The entire case is about whether a "good cause" is a “reasonable restriction” on the issuance of licenses which this argument doesn’t address. 

There is one other reason we should reject this argument is because 42/50 states are either shall-issue or permitless carry states, constituting roughly 75% of the US population. It is simply absurd to say that 75% of the country can not exercise their free speech and assembly rights because those states allow for the concealed carry of handguns. If it is anything it 's an argument against open carry of handguns and/or long guns - that's it. 

The second terrible argument they make is similar to the first, on page 21 (38 in the PDF):

“The presence of unlicensed firearms in public can also threaten free and fair elections culminating in smooth transitions of power. Last year, a number of states saw their efforts to count ballots and certify the election delayed and inhibited by firearms in the public sphere. “

They then go on to describe two individuals in Philadelphia who were carrying rifles outside an area where votes from the 2020 election were being counted, creating a hostile and fearful environment for election officials.

I certainly agree that such a display will cause that effect and I also don’t support any efforts to intimidate election officials counting votes in an area known to heavily favor one party. 

Again this is an instance where all of the comments from the previous section about the case not being about open carry of rifles applies here, which invalidates the argument off the bat. It also doesn't challenge laws banning carry in polling places or other government buildings like courthouses, which exist in shall issue states. However, what's hilarious is that they even admit in the brief that the people carrying the rifles were arrested - because they didn’t actually have permits to carry the weapons! 

The next hilariously bad argument made is on page 23 (40 in the PDF), referencing the January 6th insurrection: “While most participants in the January 6 insurrection came to Washington, D.C. from other states and appeared to comply with the District’s laws prohibiting gun possession and public carry by out-of-state visitors, some insurrectionists illegally brought firearms to the District and inside the Capitol in an attempt to thwart the democratic process.”

This argument is what really takes the cake for me in terms of being so bad they may as well be arguing the opposing position for the justices to strike down the "good cause" requirement. 

Let me state the obvious: I found the insurrection abhorrent and I hope the people who tried to usurp our democratic process to be prosecuted to the full extent of the law. I was a Biden voter in 2020, despite the fact that he is terrible for the second amendment. On the whole of other issues, I found him to be the best candidate.

That said, the point is that insurrectionists who brought weapons to DC were doing so illegally. So the point has nothing to do with the case’s objective of striking down the “good cause” section of New York’s concealed carry permit law. Even more devastating is the fact that Washington DC has been a “Shall Issue’ jurisdiction since 2017’s Wrenn v District of Columbia! In fact if NYSRPA wins the case all that would happen is the court will force the 8 “may-issue” states to adopt the kind of carry laws in Washington DC!

The fact that literal insurrectionists, people trying to overthrow the US Government carrying out the democratic process of a free and fair election - followed the still restrictive DC carry laws, not bringing their guns because they didn’t have DC carry permits - is evidence that there is no real risk to New York City if it is forced to adopt the exact same shall-issue system that DC now uses!

Why “Good Cause” or “Justifiable Need” Laws are Unconstitutional

Next I want to show where the legal arguments in favor of upholding the “good cause” laws not only fail, but are being argued in bad faith.

A lot of the argument hinges on the idea that good cause may-issue laws have been upheld by various US District Court of Appeals, surviving what is called “intermediate scrutiny”. To avoid a lot of details, there are 13 different district court of appeals covering various regions of the country. Intermediate scrutiny refers to the sort of test courts use to determine the constitutionality of the law, basically low, medium, or high bars to clear. As the name implies, intermediate scrutiny would be a medium sort of test.

The idea is that courts have determined that 2A laws should use the intermediate scrutiny standard, and when the district courts have used that standard - the may issue laws have passed the test in all the circuit court decisions that have considered it.

This is where things get misleading. First is the fact that district courts tend to mirror the regions they cover - so the circuits in the swathes of the country that have shall-issue or permitless carry laws don’t hear challenges to may issue laws because there are none in those regions. Conversely the circuits where may issue laws were tried tend to be pro-gun control and have upheld these laws - except not always.

If you know about Illinois, you’ll know it’s a heavily blue state that wants a lot of gun control, except it is oddly a shall-issue state. This is because the 7th Circuit US Court of Appeals ruled in Moore v Madigan in 2013 that Illinois “no-issue” permit system was unconstitutional and the decision heavily implied they needed to adopt a shall-issue system. The court gave 180 days for the legislature to draft such a law, or they would strike down the existing system, leaving unrestricted carry in place. The governor wanted to challenge the case to the supreme court, but the Democratic legislature didn’t want to take the risk and overrode his veto of the new shall-issue law. As such the governor's appeal was moot, and the courts decision isn’t counted against “may-issue” laws.

Similarly we have the heavily blue and pro gun-control city of Washington DC. They had exactly the sort of “good cause” may-issue laws that the 8 states in question have, and it was struck down by the  US Court of Appeals for the District of Columbia in Wrenn v District of Columbia in 2017. As stated, Washington DC is now a shall-issue jurisdiction - exactly what the plaintiffs in Bruen want.  However since that court is not technically in the “circuit courts” because DC is not a state, its decision is not counted by the pro gun-control briefs arguments. 

Here’s where we see the 8 states and gun control organizations are arguing in bad faith - because DC wanted to appeal Wrenn to the Supreme Court, however the deliberations played out far more publicly than in Illinois. The 8 may-issue states governors and attorney generals, as well as the national gun control organizations publicly and privately urged DC officials to avoid appealing to the Supreme Court because they feared it would strike down all may-issue laws. In fact when announcing their decision to not appeal, the DC officials stated exactly this concern - having had the Supreme Court Heller decision in 2008 overturn DC’s ban on handguns and establish an individual right to own a handgun. 

The point of all this is that not all courts of appeals have agreed that may-issue laws will survive intermediate scrutiny. Furthermore there has been a concerted effort by the 8 may-issue states to avoid having this issue come before the Supreme Court because they fear their laws will be struck down.

However, the strongest argument that “good cause” may issue laws being unconstitutional  is not in the details of conflicting decisions from US courts of appeals. It is because such laws violate basic notions of fairness and equality of rights under the law. 

Rules For Thee, but Not For Me

There are two classes of people that universally get granted concealed carry permits under the sort of “good cause” may-issue laws: The rich and famous and retired police officers. In some states there is an ongoing problem of a third class - those just wealthy enough to bribe local officials.

There is a famous case in California of an Apple executive sending a literal pallet of iPad’s to the police precinct that would approve his concealed carry permit, as well as other cases in New York and other states where police officers have taken bribes to issue carry permits.

However not all bribes in the US are illegal, as our campaign contribution system lays painfully self-evident. Do you want to know who had New York City concealed carry permits, decades back when they were Democrats donating millions to Democratic, gun control candidates locally and nationally?  Donald Trump and his two sons Eric and Don Jr. 

Various other wealthy New York City residents get their carry permits too, but sometimes straight campaign contributions aren’t even necessary and sheer fame can get someone through - like Howard Stern, though it is unclear if it was fame or a combination of contributions which got him his carry permit. 

That said, there is the final class that gets their carry permits - retired police officers. Most of the time the government has to use them as the deciding authority on whether to deny or grant permits, and in order to make sure they don’t get too permissive in what counts as a “good reason” to have a carry permit, realizing they will want one once they retire. So they have written the laws such that retired police officers are granted their carry permits - often getting to waive hundreds of dollars in application fees in New York City specifically.  This extends to district attorneys, local judges, or their friends and family. 

But what about the normal citizen? Well by statute just a simple desire for self defense is insufficient as a “good reason” for a carry permit. What’s worse is that normal citizens not rich or politically connected are regularly denied even if they’ve been repeated victims of violent crimes!  In one case in New York, the police denied a person their carry permit despite them applying after being robbed at gunpoint in their neighborhood.  By the time the application was processed it had been 3.5 years since the robbery and the police concluded that the individual was no longer in extraordinary personal danger. Perhaps if he was a victim of armed robbery more recently they would have granted his permit? I doubt it. 

The fact of the matter is that normal law abiding citizens have no chance of being granted a carry permit. In fact the pro-gun control briefs basis for their argument is that effectively no one is granted permits under the may-issue laws and so those places are safer. 

What’s more is that the plaintiffs in NYSRPA v Bruen are only arguing that these last 8 states with 25% of the US population must become “shall-issue” states. As we’ve seen in anti-gun jurisdictions forced by court order to become shall-issue, Illinois and Washington DC specifically, they impose extraordinary hurdles to getting their carry permits in an effort to dissuade citizens from carrying. Both places require a 2-Day training course as opposed to the single day class required in states with class requirements. There are a variety of fees, a long waiting period, etc.

Still, gun-control advocates want to create an aura of unjustified fear if the supreme court gives gun owners their rights back. I’ve covered why these arguments are bad, but additionally there is the wealth of data available that show that concealed carry permit holders are among the most law-abiding populations in the country! This doesn't stop them from being unfairly used as scapegoats, like in 2005 when Philadelphia was experiencing a surge in gun homicides, then Mayor John Street blamed the increase in murders on the fact that city residents can get concealed carry permits because of Pennsylvania law. He actually wanted to stop issuing carry permits in the city because of the increase in murders. The problem for Mayor Street was that exactly zero of any of the murders in the city were committed by citizens who had a concealed carry permit. 

This shouldn’t be surprising, since these are the people who have gone through the process to get government approval to carry a handgun concealed in public, whereas the overwhelming majority of the gun homicides and other crimes are committed by people who did not obtain their firearms legally. 

It is for these reasons that the Supreme Court is likely to overturn these may-issue laws (I hope), freeing the last 25% of the country to carry once we jump through the hoops our states put in front of us. It’s also the reason that other people do not need to see such a ruling as catastrophic or something that decreases public safety.

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