The case–New York State Rifle & Pistol Association v. Corlett–centers on New York’s requirement that an applicant seeking an unrestricted license to carry a concealed handgun show “proper cause.” New York bars openly carrying handguns. The phrase “proper cause” is not defined in the statute, but New York courts have construed it to mean that a person must “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”
Our ostensible tradition in this country is that legislatures legislate while the judicial branch interprets and applies the law to particular cases. This notion is expressed clearly in the Constitution. Article I Section 1 begins:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
New York State’s constitution Article III, Section 1 provides:
The legislative power of this state shall be vested in the senate and assembly.
Accordingly, certain questions in Corlett comes to mind. How much leeway has New York’s legislature delegated to its judiciary or executive to define “proper cause?” Does “self-defense in contemplation of confrontation” constitute “proper cause”? Would “Defense of highly valued property” constitute “proper cause?” And how do these examples square with already well-developed laws on use of lethal force?
There are two tactical approaches to answering these questions. First, is the phrase “proper cause” indistinguishable from “whatever you feel like?” Second, does the practical application of New York’s law square with the law on the use of lethal force?
When hearing Corlett, the Supreme Court should consider whether such terms as “proper cause,” and “need” are too vague to be deemed to express any legislative intent whatsoever. If such is the case, then as a matter of law, may-issue permitting regimes should fall on their vagueness alone.
A denial of an enumerated civil right, one that shall not be infringed, seems to manifestly fail Constitutionality under the Second Amendment if the denial is based on an impermissibly vague statue that appears to violate the state’s own declaration that the legislative power is vested in its legislature.
Also, it is well developed in federal and state laws that the use of lethal force is justifiable only in defense of life or limb, but not property (mostly). The Texas law seeming to authorize defense of property at night is a rare exception.
If that’s the case, we can ask whether may-issue laws such as New York’s “proper cause” requirement is applied — in practice — in conformance with the principal “proper cause.”
As a practical matter, New York authorities issue unrestricted concealed carry permits to applicants in two broad categories:
- prominent individuals who plausibly claim to be outstanding targets of lethal attacks on their persons
- non-public individuals who plausibly claim to be outstanding targets of attacks due to property in their custody
Donald Trump would certainly be an example of the first category. A diamond merchant would be an example of the second category.
For purposes of discussion of New York’s law, we can concede that the Donald’s circumstances can readily be distinguished from that of a battered woman. Trump can plausibly point to ample evidence that he has been threatened by numerous people, and as such, his claim for a need to carry is distinguishable from the ordinary individual.
The battered woman’s claim, on the other hand, is only moderately distinguishable from that of the average person. She has only a single antagonist who has targeted her. Whether such a distinction in individual circumstance is constitutional is an obvious point of dispute.
It’s clear that the Fourteenth Amendment’s guarantee against deprivation of liberty only by due process of law is at issue when distinguishing the needs of Donald Trump vs. the battered woman vs. a not-yet-battered woman. Nevertheless, I’m asking here whether it’s constitutional to make such a distinction in law at all without the state legislature spelling out — in black-letter law — the basis for making such a distinction.
The diamond merchant is a vastly more pointed case here. Let’s assume the merchant has no more than the usual number of antagonists. On these grounds, when going about his personal (as distinguished from professional) business, the jeopardy he’s under is the same as that of the average New Yorker.
On what basis does he claim a “proper cause?” Clearly it’s that he’s the custodian of very valuable property; diamonds, precious metals, and cash.
But here’s a dilemma. Is defense of property — even valuable property — a “proper cause” justifying the use of lethal force?
New York would seem to have to argue that an assault on the merchant must be presumed to be aggravated by circumstances under which the self-defender is always entitled to presume his life or limb is in jeopardy. But this is hardly obvious, especially under the circumstances typical to a merchant in New York City…or the commercial precincts of any municipality.
If our goal is to minimize the risk to life or limb, then New York ought to disarm the law-abiding custodians of property and make every reasonable effort to disarm robbers. Yet, may-issue has a propensity to do exactly the opposite. It’s allows certain individuals to carry in defense of (valuable) property, and only incidentally in defense of the custodian thereof.
This category of permitted carrier seems to be clearly inconsistent with settled law reserving the use of lethal force only in defense of persons, not property.
We can certainly understand the diamond merchant’s feelings of vulnerability. Nevertheless, arming him doesn’t guarantee that he will prevail and certainly offers no guarantee that bystanders won’t be injured if he has to defend himself. If the property is so valuable, then it should justify protecting the merchant with an entourage of escorts armed with non-lethal weapons such as Tasers, stun-guns, pepper spray, black jacks, and brass knuckles.
New York’s state legislature can easily overcome this objection in the same way Texas has. Any state’s legislature can simply declare that anyone having lawful custody of $XX,000 worth of property may use lethal force in defense of that property. But somehow I don’t expect that to happen.
It seems that Corlett raises two important constitutional (both federal and New York state) issues. It has to deal with distinguishing between prominent and non-prominent individuals. And then there’s the state favoring the defense of valuable property on a purely conjectural risk of personal jeopardy to the person who’s holding it.
The way out of these dilemmas seems to be to acknowledge that everyone who is a member of the class “We the People” has a non-particularizable right to the means of an effective armed defense of their person, irrespective of any consideration of the property he or she might possess. It would be nice if the Supreme Court concluded that, too.