A Surprise Amicus Brief in the Challenge to New York’s Gun Carry Ban

New York has received support from an unlikely source in defense of its restrictive public carry laws in the form of an amicus brief filed in NYSRPA v. Bruen , the Supreme Court case that will decide whether the Second Amendment protects a right to carry firearms in public for self-defense. The brief was submitted on behalf of several signatories, but most noteworthy is its headliner—J. Michael Luttig, the former Fourth Circuit judge who reportedly was on the shortlist for nomination to a Supreme Court seat during the George W. Bush administration. The brief does not live up to the standards one would expect from Judge Luttig. First and foremost, while claiming to take a “textualist” approach (at 7), the brief fails to confront the Second Amendment’s clear statement that the right of “the people” to “bear” arms shall not be infringed. New York absolutely criminalizes the bearing of arms openly and issues licenses to carry arms concealed only to a selected few who the state deems to have “proper cause.” Instead of bearing arms being the rule while carving out exceptions (such as for courthouses and legislatures), the brief argues that the right is not infringed because narrow exceptions are made for hunting and target practice (at 6). But that ignores that “self-defense … was the central component of the right itself,” Heller, 554 U.S. at 599. The brief’s shortcomings are conspicuous in its engagement with history. The brief purports to apply Heller ‘s text, history, and tradition […]

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