By Sam Hoober
In less than 30 days, the Supreme Court will finally address carrying a firearm outside of the home. If there is one aspect of firearms rights that needed redress by the nation’s highest court, this is it.
On Nov. 3, SCOTUS will hear oral arguments in NY State Rifle and Pistol Assoc. V. Corlett, which challenges New York’s Sullivan Act. New York state law requires that a person have a permit to carry firearms outside the home, and any applicant must show cause as to why they should be granted the permit.
The Sullivan Act, a firearms permit law enacted in 1911, is the original “may-issue” permit law. It requires an individual get a permit to carry a gun in public and show sufficient cause to be given the permit, which is granted at the near total discretion of the issuing authority.
While most states have enacted shall-issue laws – meaning the permit has to be issued if the applicant satisfies the requirements for getting the permit – a few may-issue states remain, including California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New York, New Jersey and Rhode Island.
Granted, CT, DE and RI have some interesting dynamics when it comes to issuing permits. All three states are (in varying degrees) closer to shall-issue in practice, but are may-issue at law.
With that said, oral arguments don’t mean anything in and of themselves; it only means that counsel will be presenting their arguments before the court. Decisions take a while. The average, according to the DOJ, for all appellate court decisions is six months for the court that heard the case to render a decision.
While the ostensible importance of this case is to address may-issue permit laws in the states mentioned above, that isn’t necessarily the most important aspect.
Here’s why this case is really important.
So, the way our system of government works is that the Constitution says we have some rights. We all may have our opinions of what it means, no matter how seemingly obvious, but those are mere opinions of laypersons.
That means this writer, that means you the reader, that means the people in the comments. Unless of course John Roberts reads this column, which he almost certainly won’t or doesn’t.
The federal court system makes rulings on exactly what those rights are, and the highest rung on that ladder is of course the Supreme Court. What they say, in essence, goes.
Whatever isn’t specified in the Constitution as being under federal purview is left to the states or to the people. What that also means is that no matter how obvious the meaning, unless the Supreme Court specifically says “the Constitution clearly means X” the matter is left up to the states to decide.
Again, you or I might have a different opinion about what your rights are than they do, but that is your or my opinion and therefore means about as much as our picks for Sunday’s football games as far as the legal system is concerned.
So, why the condescending Civics 101 overview?
To date, the Supreme Court has never really touched concealed or open carry in public spaces. They have never ruled that concealed carry or open carry is totally part and parcel to carrying and bearing arms, they have never addressed state licensure.
Most of what the Supreme Court has addressed regarding gun rights is what kind of guns people can own and that’s really about it.
Since concealed carry and open carry and permits for same have never been addressed by the court, the issue has been left to the states to decide for themselves as they see fit. Most US states make it easy to get a permit or allow for permitless carry – again, there are only nine may-issue states and only six of them make it hard or impossible to get one – but remember that state laws can change.
Let’s put that slightly differently.
Some shall-issue states have a heavy liberal bias. Oregon comes to mind, so does Washington state, Illinois, Virginia, and some others. Those Californians moving out of state? Well, they’re going to vote where they move to, and not all are necessarily die-hard about gun rights.
Voters in any one of those states could convince lawmakers to pass a law or vote for an initiative that changes a shall-issue permit law to a may-issue permit law. That repeals constitutional carry. That enacts a 10-round magazine restriction.
In other words, if we as a people want everyone to have the same rights everywhere the federal government is the only reliable way to make that happen.
In the absence of SCOTUS precedent declaring that carrying a weapon (concealed or otherwise) is a fundamental aspect of the right to carry and bear arms (again, no matter how seemingly obvious) that means it’s technically a privilege according to how our system of laws works.
Unless, that is, court precedent established that it is. Let’s hope they get this right.
Sam Hoober is a hunter and shooter based in the Inland Northwest.