Washington Wednesday - The SCOTUS ruling on gun rights

NICK EICHER, HOST: It’s Wednesday the 29th of June, 2022.

Thank you for tuning in to WORLD Radio. We’re so glad you’ve joined us today. Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time now for Washington Wednesday.

Today, the other big news: Congress approves a new gun law while the Supreme Court affirms Second Amendment rights.

EICHER: First the law. On Saturday, President Biden signed a bill negotiated by a bipartisan group of senators.

BIDEN: While this bill doesn’t do everything I want, it does include actions I’ve long called for that are going to save lives.

Indeed, it did not deliver the gun restrictions that the president and other Democrats have called for. Instead, it focused on areas of common ground.

The law will expand background checks for gun buyers under 21 years of age—like the two teenage gunmen in the recent mass shootings in Uvalde, Texas and Buffalo, New York.

REICHARD: It will also fund local programs for school safety and mental health. And it provides incentives for states to pass so-called red flag laws, which allow law enforcement to temporarily remove firearms from someone deemed to be a threat.

Democrats called it a good start.

EICHER: Senate Republican Leader Mitch McConnell said it will make Americans safer while also protecting the rights of those who own guns.

MCCONNELL: The American people want their constitutional rights protected and their kids to be safe in school.

Just days before the president signed that bill into law, the U.S. Supreme Court issued a major ruling on gun rights.

The court said New Yorkers no longer have to justify to the government their need for a firearm to obtain a license to carry.

In a 6-to-3 ruling, the high court said the state’s requirements violated the Second Amendment rights of its citizens.

Joining us now to talk about that ruling is Brad Jacob. He is an associate dean and professor at Regent University School of Law.

REICHARD: Professor, good morning!

BRAD JACOB, GUEST: Good morning. It's a pleasure to be with you.

REICHARD: I think it might be useful to understand how we got here. Justice Thomas writing for the majority says this ruling in New York State Rifle and Pistol Association follows logically the Heller ruling in 2008 and the McDonald ruling in 2010. What were those rulings?

JACOB: Well, DC vs. Heller back in 2008 established that there is an individual right to keep and bear arms under the Second Amendment to the Constitution. Up until that point, there had been—well, and there still is today—disagreement amongst some folks who say, ‘No, it's just a right to have the militia, which is now the National Guard. It doesn't mean any individual has a right to have arms.’ But Heller said, ‘Yes, that's what the Second Amendment means individual right to weapons.’ McDonald vs. Chicago two years later said that that right applies not only against the federal government, but against the states. And there's a whole wonkish thing there of how the Supreme Court incorporates fundamental rights from the Bill of Rights and puts them into the due process clause of the 14th Amendment. But essentially, McDonald said, ‘That applies here.’ So not only the federal government, but the state governments have to respect people's Second Amendment rights. The problem is that Heller and McDonald leave huge questions unanswered about what limits can be put on firearms without violating the Second Amendment? Can certain weapons be kept away from people? What sort of process can you have to get guns, permits, and background checks? And can they be kept out of public buildings of different kinds? The earlier cases don't do any of that. They don't answer those questions. And the new case, the New York State Rifle and Pistol Association, takes on one small chunk, and it's really a very limited holding. All it says is if the state allows you to keep a gun in your home, but you can't ever bear it outside your home, they're violating your right to keep and bear arms. So, something that amounts to a flat prohibition on carrying your gun is not constitutional. So that in itself is not a huge ruling, but it is a step down the path of answering these other questions.

REICHARD: Let’s talk about the New York gun law now. It said if you wanted to apply for a license to carry for purposes of self-defense, you had to persuade a local county official that your reason was good enough. You had to show a particular need to carry a firearm. But the opinion says a state can’t force citizens to justify their need to exercise a constitutional right.
So that’s clear enough. So what was New York’s constitutional argument for keeping that law in place?

JACOB: Well, New York had a more limited view of the Second Amendment right. New York said we allow people to get a concealed carry permit, if they have need. And the keep and bear arms right is dependent on your needs. So if you can show that there's something about your job or where you have to be or that there are people trying to kill you, if you can establish that, you can carry your weapon. But the problem is, there was no guidance at all, no statute laid out what conditions have to be met. So it ended up being totally discretionary, which could well mean, if you're famous, and you're important, and you're well connected, you get the permit. And if you're just a regular person in New York, you don't. It was so discretionary, that it amounted to no ability at all to carry weapons.

REICHARD: I’m going to quote from the dissent now that was written by Justice Stephen Breyer: “In my view, when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead states to regulate firearms.” So professor, to clarify, this ruling still allows for states to regulate guns, right? Is Justice Breyer’s comment overstating things?

JACOB: Justice Breyer’s comment is overstating things. Justice Breyer’s entire dissent is very emotional. He goes on and on with all the terrible things that happen with gun violence. And we all know that. We know that there are school shootings. We know that horrific things happen with guns. None of which really has anything to do with this law and this case, and he gets taken to task on that by a couple of the concurrences saying, that's nice, but that's not what this case is about. The state can still regulate. The state can still have conditions. Most states—43 of our states—have what's called must-issue or shall-issue laws, which means there are specific criteria and if you meet those criteria, you get a permit for your gun. This was what's called a may-issue statute, meaning even if you meet all the criteria that are there, the state may still just say, nah, we don't think you get to have a gun. So, Breyer is making a very passionate argument. But in fact, the states can still regulate in lots of ways and this case doesn’t define all the outer limits of that.

REICHARD: So we can say that this decision is a sure win for the two law-abiding men who were highly trained, I will add, in using firearms and who were denied a license to carry for purposes of self-defense. What does this ruling mean for regular folks in New York, and what’s it mean for the ability of the state to restrict gun use going forward?

JACOB: Well, it means particularly in those six states that have these may-issue laws, they can't do that anymore. They're going to have to define the conditions under which a citizen can get a permit to carry a handgun. They can't have a regime that simply lets people not be allowed to carry their gun. They can keep their arms in their house, but they can't bear them outside. That won't work anymore. So those six states are going to have to change their laws. Other than that, nothing really changes. The only other thing that may be significant is that Justice Thomas's opinion in this case makes it clear that the burden of showing whether a restriction is valid or not falls on the government. If the government is interfering with your ability to keep and bear arms, the court says we're not going to do a balancing test. We're not going to talk about intermediate scrutiny or strict scrutiny. We're going to say, is this analogous, is it similar to historical restrictions on individuals weapons? But it's the state that's going to have to show it. And down the long run, that may be the most interesting part of the opinion is that sort of burden-shifting aspect of the case.

REICHARD: So you don’t see much impact on gun restrictions in other states, I take it?

JACOB: Not in the short term. If they're already doing a shall-issue regime, nothing in this case directly forces them to change. But again, as some of those kinds of restrictions get challenged. The idea that the state will have a burden of proving the need for its restriction or proving that its restriction is consistent with history, that may have an effect down the road.

REICHARD: Brad Jacob is associate dean and professor of law at Regent University School of Law. Professor, thanks so much, appreciate your time.

JACOB: It’s my pleasure.

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