In New York State Rifle, the court should look to text, history, and tradition

In New York State Rifle, the court should look to text, history, and tradition

This article is part of a symposium on the upcoming argument in New York State Rifle & Pistol Association v. Bruen . A preview of the case is here . Stephen P. Halbrook, a senior fellow with the Independent Institute, is the author of The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? New York State Rifle & Pistol Association v. Bruen concerns whether New York may condition the right to carry a firearm on an official’s finding of “proper cause.” “Proper cause” means an exceptional need, and it excludes, for example, residence in a high-crime area. Possession of an unlicensed, loaded handgun subjects one to 15 years incarceration. The court should decide the case based on text, history, and tradition, the methodology it applied in District of Columbia v. Heller holding that a ban on handguns in the home violates the Second Amendment. In Heller, the court eschewed an “interest-balancing” test under which judges “decide on a case-by-case basis whether the right is really worth insisting upon,” and it should do the same here. The parties agree that the starting point is the text: “the right of the people to … bear arms, shall not be infringed.” New York denied the carry licenses to Robert Nash and Brandon Koch because they failed to show “a non-speculative need for armed self-defense in all public places.” That suggests that bearing arms is a privilege, not a right. As Justice Antonin Scalia […]

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