Round 1 was DC v Heller, in which the SCOTUS found that the 2nd amendment means what it says. It guarantees a civil right of the people, like the rest of the Bill of Rights.

Round 2 was MacDonald v Chicago, in which the SCOTUS incorporated the 2nd amendment, making it binding on states and local government. This gave it parity with the rest of the Bill of Rights.

Round 3 (New York Rifle & Pistol v Bruen) is happening today at the SCOTUS. It is about how much this civil right can be regulated for public safety, without infringing the civil rights of gun owners.

First, let’s cover the notion of whether public carry is covered by the 2nd amendment. The 2nd amendment says, “the right to keep and bear arms”. Keeping is in your house. Bearing is on your person in public. One of the material questions of this case (New York Rifle & Pistol v Bruen) is whether this means what it says, in simple plain language.

Update: Thu 6/23: The SCOTUS decision is released, and says yes, the 2nd amendment means what it says.

Most states have laws that require people to get a permit before they can carry firearms in public. This kind of regulation is entirely lawful and reasonable, as it protects the public from criminals, the insane, and others who cannot exercise this right responsibly, and would be a danger to others. The point of contention is that in New York, California, and a few other states, the permits are “may issue”. This means state or local authorities have discretion to grant, or deny, a permit for any reason, or for no reason. In other states, like WA, FL, AZ etc. the permit process is “shall issue”. This means they define disqualifying criteria in writing, local authorities have no discretion, every person “shall” be issued a permit unless a disqualifying criteria applies. Furthermore, some of the states (like NY) require a permit applicant to show “proper cause” why he wants to carry a gun in public.

The 2nd Amendment is a civil right, not a privilege. If we have to show “proper cause” to get permission to do something, and local authorities can deny it for any reason, then it is a privilege, not a right. The government cannot ask us to show “proper cause” before we can exercise our right to free speech, to worship the religion of our choice, to peaceably assemble, or any other civil right. The 2nd amendment is no exception.

The argument from the anti-gun perspective is that every locality must have the power to regulate public safety in the way they see best. This is true, yet their case does not follow. They do have the power to regulate this right, but they do not have the power to use regulation as a pretext to rescind it.

1. No regulation can violate people’s civil rights, even if it achieves a public or social benefit. A local law allowing police to search anyone on the street without cause or suspicion might reduce crime. But local governments do not have the power to do this because it violates people’s civil rights.
2. State and local governments do have the power to regulate the right for people to carry guns in public. But they must do it in a way that is consistent, treats everyone the same way, and preserves the civil rights of every-day law abiding people.

So how can New York, California and other states make their carry laws constitutional?

1. Switch from “may issue” to “shall issue”. Local authorities do not have discretion, but follow written law.
2. Eliminate “proper cause” as a requirement for public carry permits. It is inherently subjective and restrictive, weakening the right to carry into a mere privilege.
3. Disqualifying criteria must be objective and define the exceptions, not the norm. Criminal or violent history, mental instability or insanity, under age, etc.
4. Places designated as “sensitive” or “no carry” zones must be objective and define the exceptions, not the norm. Jails, courthouses, etc. Not the places that people go every day.
5. Many states have requirements for training. These are constitutional, as long as the training is not burdensome and is accessible to any applicant.