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By the Law Journal Editorial Board
______________________________
Last Monday’s Supreme Court oral argument in NY State Rifle & Pistol Association v. Bruen felt at times like a re-run of Curtis and Kuby. The AM radio talk show featured lefty lawyer Ron Kuby and Guardian Angel Curtis Sliwa in crossfire chatter. But yesterday’s Supreme Court argument featured a strange alliance between former prosecutor Samuel Alito and an alliance of New York public defenders looking to void the New York law because it landed so many of their clients in the state prisons for long terms.
Justice Samuel Alito conveyed a subway shooter Bernard Goetz vision of New York. He seems to think the trains and platforms are populated by lots of illegal gun carriers, while law abiding doormen, dishwashers, and cleaning women are forced to go unarmed on trains, buses and “high crime” neighborhoods.
Yet Justice Alito was able to invoke the bizarre parallel in the public defenders amicus motivated by the harshness of New York’s criminal penalties, part of a history of racially targeted laws in their view.
Such thinking has brought us to our current pass. In 2012, Richard Posner, then a 7th Circuit judge, struck down an Illinois law barring carrying loaded guns outside the home. In Moore v Madigan he wrote
“[O]ne doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home. Suppose one lived in what was then the wild west, the Ohio Valley for example (for until the Louisiana Purchase the Mississippi River was the western boundary of the United States), where there were hostile Indians. One would need from time to time to leave one’s home to obtain supplies from the nearest trading post, and en route one would be as much (probably more) at risk if unarmed as one would be in one’s home unarmed.”
We are afraid that such amateur historical analysis will carry the day in New York State Rifle & Pistol Association. New York Governor Kathy Hochul said after the argument: “The spectacle of thinking New Yorkers can walk around with a gun concealed on our subways and into our delis and into our restaurants and into our entertainment venues—that is not the New York I want to live in…” New York’s trains and terminals are already thinly attended. Token booths are gone, replaced by ATM-type machines.
We find ourselves aligned with New York Gov. Hochul and share her apprehension. New Jersey too has many “high crime areas,” and a public bus and train system rivalled only by New York’s.
The logic the high court majority seemed to be pursuing is that gun ownership for self-defense is a personal right. The holder of that right should not have to ask permission to exercise the right: the burden is on government to restrict it. But the Supreme Court’s precedent in Heller v. District of Columbia invoked the defense of the home. The Second Amendment is plainly tied to the need for a “well-regulated militia”. Armed subway and bus riders is scarcely the vision evoked even for constitutional originalists. Such restraints found little support on the court. But as Oliver Wendell Holmes famously said – experience, not the syllogism – is the best guide to understanding the development of the law. New Jersey’s gun control regime appears to be similarly endangered by the New York Rifle & Pistol Association line of argument. N.J.S. 2C:58-3 (c)(5) provides that a permit may be denied “[t]o any person where the issuance would not be in the interest of the public health, safety or welfare … .”
Noticeably missing from the court’s two hours of argument was any talk of the human toll of the wide possession of guns in America. UC Davis Health reported for 2019:
“There were 39,707 deaths from firearms in the U.S. in 2019. Sixty percent of deaths from firearms in the U.S. are suicides. In 2019, 23,941 people in the U.S. died by firearm suicide. Firearms are the means in approximately half of suicides nationwide.
“In 2019, 14,861 people in the U.S. died from firearm homicide, accounting for 37% of total deaths from firearms. Firearms were the means for about 75% of homicides in 2018.
“The other 3% of firearm deaths are unintentional, undetermined, from legal intervention, or from public mass shootings (0.2% of total firearm deaths).
“There are approximately 115,000 non-fatal firearm injuries in the U.S. each year.”
As Surgeon General Vivek Murthy has said, “Guns are a health care issue.” Although scant attention was paid to that in oral argument, there is still time for the court in its internal debate to give broader and more practical consideration to the profound impact its decision could have—especially on New York, New Jersey, and other highly urbanized areas.
Editorial Board Chairman Rosemary Alito recused from this editorial.
This is today's editorial in the New Jersey Law Journal,. It is about the New York Rifle & Pistol Association case argued last week in the U.S. Supreme Court
- GWC
Guns Are a Public Health Issue
There is still time for the court in its internal debate to give broader and more practical consideration to the profound impact its decision could have—especially on New York, New Jersey, and other highly urbanized areas.By the Law Journal Editorial Board
______________________________
Last Monday’s Supreme Court oral argument in NY State Rifle & Pistol Association v. Bruen felt at times like a re-run of Curtis and Kuby. The AM radio talk show featured lefty lawyer Ron Kuby and Guardian Angel Curtis Sliwa in crossfire chatter. But yesterday’s Supreme Court argument featured a strange alliance between former prosecutor Samuel Alito and an alliance of New York public defenders looking to void the New York law because it landed so many of their clients in the state prisons for long terms.
Justice Samuel Alito conveyed a subway shooter Bernard Goetz vision of New York. He seems to think the trains and platforms are populated by lots of illegal gun carriers, while law abiding doormen, dishwashers, and cleaning women are forced to go unarmed on trains, buses and “high crime” neighborhoods.
Yet Justice Alito was able to invoke the bizarre parallel in the public defenders amicus motivated by the harshness of New York’s criminal penalties, part of a history of racially targeted laws in their view.
Such thinking has brought us to our current pass. In 2012, Richard Posner, then a 7th Circuit judge, struck down an Illinois law barring carrying loaded guns outside the home. In Moore v Madigan he wrote
“[O]ne doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home. Suppose one lived in what was then the wild west, the Ohio Valley for example (for until the Louisiana Purchase the Mississippi River was the western boundary of the United States), where there were hostile Indians. One would need from time to time to leave one’s home to obtain supplies from the nearest trading post, and en route one would be as much (probably more) at risk if unarmed as one would be in one’s home unarmed.”
We are afraid that such amateur historical analysis will carry the day in New York State Rifle & Pistol Association. New York Governor Kathy Hochul said after the argument: “The spectacle of thinking New Yorkers can walk around with a gun concealed on our subways and into our delis and into our restaurants and into our entertainment venues—that is not the New York I want to live in…” New York’s trains and terminals are already thinly attended. Token booths are gone, replaced by ATM-type machines.
We find ourselves aligned with New York Gov. Hochul and share her apprehension. New Jersey too has many “high crime areas,” and a public bus and train system rivalled only by New York’s.
The logic the high court majority seemed to be pursuing is that gun ownership for self-defense is a personal right. The holder of that right should not have to ask permission to exercise the right: the burden is on government to restrict it. But the Supreme Court’s precedent in Heller v. District of Columbia invoked the defense of the home. The Second Amendment is plainly tied to the need for a “well-regulated militia”. Armed subway and bus riders is scarcely the vision evoked even for constitutional originalists. Such restraints found little support on the court. But as Oliver Wendell Holmes famously said – experience, not the syllogism – is the best guide to understanding the development of the law. New Jersey’s gun control regime appears to be similarly endangered by the New York Rifle & Pistol Association line of argument. N.J.S. 2C:58-3 (c)(5) provides that a permit may be denied “[t]o any person where the issuance would not be in the interest of the public health, safety or welfare … .”
Noticeably missing from the court’s two hours of argument was any talk of the human toll of the wide possession of guns in America. UC Davis Health reported for 2019:
“There were 39,707 deaths from firearms in the U.S. in 2019. Sixty percent of deaths from firearms in the U.S. are suicides. In 2019, 23,941 people in the U.S. died by firearm suicide. Firearms are the means in approximately half of suicides nationwide.
“In 2019, 14,861 people in the U.S. died from firearm homicide, accounting for 37% of total deaths from firearms. Firearms were the means for about 75% of homicides in 2018.
“The other 3% of firearm deaths are unintentional, undetermined, from legal intervention, or from public mass shootings (0.2% of total firearm deaths).
“There are approximately 115,000 non-fatal firearm injuries in the U.S. each year.”
As Surgeon General Vivek Murthy has said, “Guns are a health care issue.” Although scant attention was paid to that in oral argument, there is still time for the court in its internal debate to give broader and more practical consideration to the profound impact its decision could have—especially on New York, New Jersey, and other highly urbanized areas.
Editorial Board Chairman Rosemary Alito recused from this editorial.
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