New York State Rifle & Pistol Assn. v. Bruen (20-843)

argument 20-843

New York State Rifle & Pistol Assn. v. Bruen

Supreme Court of the United States 1h 57m 8 speakers 8 chapters transcribed 7 days ago official recording ↗

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What does the Second Amendment protect and how is it applied to carrying firearms outside the home?

John G. Roberts 0:00

We will hear argument this morning in case twenty eight forty three, New York State Rifle and Pistol Association versus Bruin. Mr. Clement.

Trevor W. McCarthur 0:10

Mr. Chief Justice, and may it please the Court, the text of the Second Amendment enshrines a right not just to keep arms, but to bear them. And the relevant history and tradition, exhaustively surveyed by this court in the Heller decision, confirm that the text protects an individual right to carry firearms outside the home for purposes of self-defense. Indeed, that history is so clear that New York no longer contests that carrying a handgun outside of the home for purposes of self-defense is constantly. constitutionally protected activity. But that concession dooms New York's law, which makes it a crime for a typical law abiding New Yorker to exercise that constitutional right. This court in Heller labelled the very few comparable laws that restricted all outlets for carrying firearms outside the home for self defense outliers that were rightly condemned in decisions like none against Georgia.

Trevor W. McCarthur 1:11

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. That is not how constitutional rights work. Carrying a firearm outside the home is a fundamental constitutional right. It is not some extraordinary action that requires an extraordinary demonstration of need. Petitioners here seek nothing more than their fellow citizens in 43 other States already enjoy, and those states include some of the most populous cities in the country.

Trevor W. McCarthur 2:08

Those states, like New York, limit the firearm arms in sensitive places, but do not prohibit carrying for self defense in any location typically open to the general public.

Clarence Thomas 2:22

I'm happy to continue by pointing to the first time. If we analyze this um and use history, tradition, text of the Second Amendment, we're going to have to do it by analogy. So can you give me a regulation on in history that is a bas that would form a basis for a legitimate regulation today. If we're going to do it by analogy, what would we analogize it to? What would that look like?

Trevor W. McCarthur 2:59

Well, Your Honor, I suppose if you're going to reason by analogy, then you could go back and you could find analogous restrictions relatively early in our nation's history about prohibiting certain types of firearms or having firearms in or any weapon really in certain sensitive locations. And I think you could reason in that way. Here, I think the reasoning works the opposite direction, which is you typically Typically have a baseline right to carry for self-defense. And the only historical analogs that really restricted the right of a typical law-abiding citizen to carry for self-defense to the same degree as the New York law here were those laws, very few, typically post-Reconstruction laws, that purported to eliminate any right to carry openly or consistently.

Trevor W. McCarthur 3:49

Sealed. And those court those those laws were essentially invalidated by every court that was applying an individual rights view of the Second Amendment. And those decisions, of course, were exhaustively considered by this court in Heller. And those decisions were praised for their understanding of the Second Amendment and the relationship between the prefatory clause and the operative clause. And equally important, those laws were were set forth by this court and singled out by this court as the very few restrictions historically that were comparable to what the District of Columbia was doing in Heller.

Clarence Thomas 4:25

So if we look at the you mentioned the founding and you mentioned post reconstruction Um uh But if we are to analyse this based upon um the history or tradition, should we look at the founding or should we look at the time of the adoption of the Fourteenth Amendment, which then of course applies it to the states?