NYSRPA Poised to Upend Gun Control

It’s been some time since the justices of the
Supreme Court of The United States heard the NYSRPA v. Bruen
case. NYSRPA is the New York Rifle and Pistol Association, the state level club
affiliated with the National Rifle Assocaiton. The NRA with the NYSRPA funded
and supported this case from day one.

There can be speculation coming from the side
of freedom lovers on how much liberty is going to be restored to the land, but
that’s just what it’d be, speculation. Judging by the moves by those that are
members of the anti-freedom caucus, they too think that the permitting scheme
in New York will be gutted. We don’t “know” any of this, however the
introduction of all kinds of new so-called “gun control” laws across the nation
points towards what the tea leaves are saying to the progressives.

What we do have to lean on are some very
poignant questions that were asked by the justices as well as some interesting
statements. We have the near fact that New York’s Solicitor General, Barbara D.
Underwood, who was tasked with defending this awful law, came up short. In
Underwood’s ramblings and attempts to justify the statute, she sounded like a kid
trying to deliver an oral report on a book she did not read. And, naturally, as
expected, Paul Clement, arguing for liberty and civil rights, hit some serious
home runs.

The core of this case is concealed carry,
right? Well, kind-of. The petitioners asked the court to answer one question,
which the justices revised and agreed to answer a different one. This is the
question they agreed to hear:

the State’s denial of petitioners’ applications for concealed-carry licenses
for self-defense violated the Second Amendment.”

Why the question was rephrased the way it was,
no one can say except the justices. When dealing with the Supreme Court, one
could garner as much insight by throwing chicken bones on a table and trying to
read them, than any other prognosticating. What they do is a mystery.

A good amount of time during the hearing
involved the discussion over “sensitive places”. The term is mentioned 23 times
through the transcript of the oral arguments. Clement addresses this notion in
his opening arguments:

“New York likens its law to a restriction on weapons in sensitive
places. But the difference between a sensitive place law and New York’s regime
is fundamental. It is the difference between regulating constitutionally
protected activity and attempting to convert a fundamental constitutional right
into a privilege that can only be enjoyed by those who can demonstrate to the
satisfaction of a government official that they have an atypical need for the
exercise of that right.”

Traditionally a sensitive place would be a
federal building, court house, school, post office, locations of those natures.
From Clement’s admission “this Court in
Heller, for example, said sensitive places include government buildings and
schools. I think those, you can probably tap into a pretty good tradition.”

Regardless of our own personal feelings on what does or does not constitute a
traditionally accepted “sensitive place”, we can all agree that the entirety of
New York City or State is NOT a sensitive place, as was insinuated during the
arguments. When challenged on this notion of “sensitive places” Underwood
stated the following, very eloquently,
on behalf of the state:

“Well, essentially, because there are — it — it is — it would be
very hard in the first instance and I think also not very acceptable in the
second — to — to my adversaries, on the — in the second instance, to specify
in advance all the places that ought properly to be understood as sensitive.

So it sounds like a very convenient alternative, but, for example, we
were talking about Times Square on New Year’s Eve. Times Square on — when the
theater district — when — when — when commerce is in full swing, Times
Square almost every night is
shoulder-to-shoulder people. So
then you — you end up having a very big difficulty in specifying what all the
places are that have the characteristics that should make them sensitive. It —
it’s — it has a — in principle, it has an attractive quality to it, but, in
implementation, I think it would be unsuccessful.”

Clement nearly cemented shut the arguments
that Underwood brought up about sensitive places in mentioning a different type
of temporary restriction:

“So here — here’s
what I would suggest, that the right way to think about limiting guns in Times
Square on New Year’s Eve is not as a sensitive place but as a time, place, and
manner restriction.”

While the entirety of any restriction might
not be accepted by anyone that comes from the “shall not be infringed” camp, we
all need to appreciate and understand we’re talking about New York, in this
instance specifically New York City, and the matter of carry is completely
alien to the majority of the city’s inhabitants. None-the-less, that dynamic
shows the further importance of this case and normalizing freedom for those who
are shackled by these abstinence-only approaches to the Second Amendment.

The justices had some memorable quips and
quotes that are worth repeating. If anything, they might shed some light on
what they’re thinking or postulating for a written opinion.

Justice Alito had the following to say about
carry in the City of New York in dialogue with Underwood:

“ALITO: None of these people has a criminal record. They’re all law-abiding citizens.
They get off work around midnight, maybe even after midnight. They have to
commute home by subway, maybe by bus. When they arrive at the subway station or
the bus stop, they have to walk some distance through a high-crime area, and
they apply for a license, and they say: Look, nobody has told — has said I am
going to mug you next Thursday. However, there have been a lot of muggings in
this area, and I am scared to death.

They do not get licenses, is that right?

UNDERWOOD: That is in general right, yes. If there’s nothing particular
to them, that’s right.

ALITO: How is that consistent with the core right to self-defense,
which is protected by the Second Amendment?”

Reading between the lines, it’s almost as if
Alito is giving an argument, because it’s a statement of fact. There was no
recovering from that for Underwood.

Quite shocking though were some of Kagen’s
remarks, while she toiled with an equal protection argument as she spoke about
restrictions in one area of the country versus another:

“General, you know, one of the things that strikes me about this area
is that, on the one hand, it — it seems completely intuitive to me and I think
to many people. I mean, if you think about Justice Thomas’s questions about
less populated areas, the rural areas of New York versus the cities, I mean, it
seems completely intuitive that there should be different gun regimes in New
York than in Wyoming or that there should be different gun regimes in New York
City than in rural counties upstate.

But it’s a — it’s — it’s a hard thing to — to match with our notion
of constitutional rights generally. I mean, Mr. Clement makes a big point of
this in his brief about how we would never really dream of doing that for the
First Amendment or other constitutional rights, allow that level of local
flexibility that you’re basically saying we should allow in this context.

So I guess I just want to hear you say why you think that is. You know,
what justification is there for allowing greater flexibility here?”

That musing is as close to a check-mate on the
subject of the Second Amendment right to bear arms than I’ve read in recent
history from a left of center justice (if ever). Kagen basically delivered an
equal protection and strict scrutiny argument to Underwood, the Court, and
public at large, on a silver platter.

If you haven’t read the full transcript of the oral arguments, I urge
you to do so. Or if you rather, you can listen to them. Perhaps listening is
the best way to go, as you’d be able to gauge the emotion and inflection behind
the words.

What’s going to happen with NYSRPA? I don’t know, but it’s fun to
guess. Do I think that the Second Amendment will prevail in the orders from the
court? Yes, I think freedom will win. It’s a matter of to what degree. I would
not be surprised if we had several split opinions on different aspects of the
case. I think that the majority will rule that “shall-issue” needs to be the
law of the land. I think beyond that simple majority, some of the more liberal
justices may join in saying that indeed NY infringed on the petitioner’s rights
by not issuing them their permits. That is possible, but I think they’ll fall
short of saying that “shall-issue” is the remedy.

It’s been gathered that an opinion might come
out by June, prior to summer recess. Generally speaking the court will deliver
opinions on the more “controversial” cases closer to summer. We’ll probably be
waiting out the next five months until hearing anything. Though, they can
always drop a bomb on the nation and pony up with their thoughts sooner. What
if they did that tomorrow?!?! Either way, if freedom rings from the high court,
it’s going to still be a good amount of time before “shall-issue” is restored
to all the land. It’s probable more litigation’s going to be needed, as I don’t
see states like New Jersey, Hawaii, California, and Maryland just volunteering
to comport with the new case law. But who knows, it’s 2022 and anything can

Stay safe out there
and think before you do!

John Petrolino is a US Merchant Marine
Officer, writer, author of“Decoding Firearms: An Easy to Read Guide on General Gun
Safety & Use”
and USCCA certified instructor, NRA certified
pistol, rifle and shotgun instructor living under and working to change New
Jersey’s draconian and unconstitutional gun laws. You can find him on the web
on twitter at@johnpetrolino
on Facebook athttps://www.facebook.com/thepenpatriot/
and on instagram@jpetrolinoiii