Cato Weighs in on Most Significant Second Amendment Case in a Decade

More than a decade ago, the Supreme Court declared that the Second Amendment guarantees an individual right to keep and bear arms for self‐​defense. Since then, lower courts have tried to restrict the right as much as possible. New York prohibits its citizens from carrying a handgun outside the home without a license. And while New York permits concealed carry of a handgun with a license, it makes it virtually impossible for citizens to obtain a license because it requires every citizen to have a “proper cause” to carry a firearm. Under New York law, a general desire to protect oneself does not meet the “proper cause” threshold. Relying on an earlier case, the Second Circuit blessed this licensing regime. Petitioners appealed, and the Supreme Court agreed to take the case. The Second Circuit is not anomalous in its treatment of the Second Amendment. The morass of case law since District of Columbia v. Heller is wildly divergent and unintelligible. While Heller used a history‐​based inquiry, lower courts have adopted a variety of judge‐​empowering balancing tests. The only thing consistent across circuits is judges upholding all but the most severe restrictions under the guise of “public safety.” The Supreme Court is not blameless in the lower courts’ malfeasance. Though Heller resolved the question of firearms in the home, it expressly declined to say how the ruling should apply in other contexts. Moreover, the Court has consistently declined to hear challenges to other restrictive gun regulations. Thus, the Court’s decision […]

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