New York Diamond merchant district
Shutterstock

The Duke Center for Firearms Law had a few comments on the Corlett carry permit case recently taken up by the United States Supreme Court:

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:

  1. prominent individuals who plausibly claim to be outstanding targets of lethal attacks on their persons
  2. 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.

security guard
Shutterstock

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.

 

35 COMMENTS

  1. “The Supreme Court Should Take a Close Look at What ‘Proper Cause’ Means in New York”

    No, it should not continue the process of courts chasing their own tails and deciding how many angels can dance on the head of a pin. ALL “may issue” permitting schemes must be considered for what they actually are — obvious infringements on a Fundamental Constitutional Right. If 2A has any meaning at all, cops and politicians should have NO discretion in the process. None.

    If the Court is going to kick all permitting schemes, even shall issue ones, in favor of Constitutional Carry, that would be great! But it won’t. So let’s get rid of “may issue” and then move on to the next fight.

    • My point, in this OP, was to raise a novel question that should undermine may-issue.

      If my reasoning is sound then the appellants should consider including this argument in their briefs to SCOTUS. Have I raised a legitimate point? Is NY’s licensing defenders of property, while refusing to license defenders of persons, NOT a “proper purpose”?

      We should all be thinking of the diverse facets of May-Issue schemes searching for all of their weaknesses. Any one of these weaknesses may appeal to one or more justices and bring the case to a more forth-wright conclusion.

      Merely beating the drumhead on the same spot isn’t going to gain us another justices’s vote nor will it auger for a stronger holding.

    • The biggest exposure in NYS, is that the decision to issue a full carry is up to the issuing authority and is considered a privilege (like a drivers license); which (outside of NYC) that issuing authority is a county judge, which means in one county you might get a full carry license, in another you might never get it. It’s as arbitrary and capricious as you can get, not to mention straying from “equal protection under the law”, based solely upon one person’s geography and a unilateral judgement or belief of one person whether you should be able to carry outside the home or not. In my county (part of the reason I moved here) they practically give it to you upon moving in. While in the next county over, barely 4miles from me, it’s nearly impossible to get a full carry license. That is, I suspect, NYS’ biggest exposure in this case…

  2. Things are worse for us in Florida. The governor just signed a law where if we protest for our 2A rights, and if 3 people out of thousands break a law, we can be guilty by association. So if three Antifa break windows during a Pro-2A rally, everyone Pro-2A can be jailed and tried and convicted. And this is a governor thinking about running for president if Trump lets him! Florida doesn’t care about your 2A rights. Kiss your 2A rights goodbye people because in Florida you wont be able to assemble for your 2A rights. The governor made sure you are screwed.

    • It’s true. There is a faction of the Republican Party that does not care about our Second Amendment Rights. What they do care about is maintaining the illusion of being on our side so as to get our votes. Currently these traitors hold power in Florida.

      Donald Trump is the leader of this faction.

  3. This is all getting way off in the weeds. If there is such a thing as a right to bear arms, then it is up to the state to justify each and every exception and limitation to that right, and tailor those limitations as narrowly as possible. A thing that an individual may do only under special license, granted by the state upon its being satisfied that an extraordinary need exists and stringent requirements are met, is not a right at all. That these extraordinary requirements be clearly, rather than vaguely, defined would be a good thing, but it wouldn’t remedy the fundamental problem.

    • DaveL,

      “That these extraordinary requirements be clearly, rather than vaguely, defined would be a good thing, but it wouldn’t remedy the fundamental problem.”

      I came to echo a similar sentiment.

      Imagine if New York applied the same scheme to practicing religion:
      1) Religious zealots have maimed/murdered thousands of people.
      2) Anyone practicing religion could become a religious zealot.
      –therefore–
      3) Practicing religion without a state-issued religion license is illegal.
      4) You must show extraordinary need to practice religion to obtain a license.

      If that scenario came to pass, would the proper strategy be arguing about the vagueness of “extraordinary” and “need” and who qualifies? Or would the proper strategy be arguing that no one–not even Almighty Government–has any legitimate righteous authority to dictate who can and who cannot practice religion or how they practice it?

      Now, someone will chime in that government has righteous authority to ban religious practices which entail human sacrifice–thus government has righteous authority to ban self-defense practices which entail “human sacrifice” (e.g. collateral damage to bystanders and other innocent people) and therefore to ban the carriage of firearms. And that would NOT BE AN EQUIVALENT ARGUMENT since carrying a firearm for self-defense virtually never results in the maiming/killing of innocent people. (Whereas human sacrifice ALWAYS results in the death of a human.)

      • I think you have introduced a new and valid argument.

        It was said (in a 1A case) that “You can’t yell ‘Fire!’ in a crowded theater”. But this was incorrectly reasoned.

        Every theater goer (who is not mute) CAN – in fact – yell whatever strikes his fancy. And, he CAN be punished for yelling. He may be punished for disturbing the peace of other theater goers. He may be punished for inciting a stampede to the exits. After-the-yelling punishment will be in accordance with malum in se laws.

        A valid question to consider – in the alternative – would be whether the state has the power to require theater goers to be muzzled while in attendance at a crowded venue. That would seem to be a malum prohibitum law.

        Then, we could consider whether such a malum prohibitum law violates the right of freedom of speech.

        The argument could be extended to other contexts. Could church-goers be muzzled such that they could not prey or sing hymns? Could peaceable assemblers be muzzled such that they could not cheer or boo speakers remarks?

        If there is a right to exercise religion, a right to assemble to debate, a right to defend oneself, then the right to speak ought not be abridged nor the right to bear arms infringed.

        • Actually, “You can’t yell ‘Fire!’ in a crowded theater” is a misquote.

          Justice Holmes actually declaimed about “falsely shouting fire in a theatre and causing a panic.”

        • “A valid question to consider – in the alternative – would be whether the state has the power to require theater goers to be muzzled while in attendance at a crowded venue.”

          A different way to phrase that would be :

          The usher at the theater doesn’t require you to duct-tape your mouth shut before entering the theater…

        • Holmes being just ONE MORE turn of the century damn Prog. Right out of the TR mold. With little regard for the Constitution and believing big gov could do anything it wants to. A Rep (RINO) that todays demtards can venerate because he advanced their agenda.

  4. “…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.”

    There’s the rub. Any honest look at what “proper cause” means in practice will inevitably reach the conclusion that the only proper cause is the intrinsic right of every human being to defend his own life — but the racist NYC elites and the assorted “progressives” who ape them don’t want the poors, the blacks, the Italians, etc., etc., to start thinking their lives might have the same intrinsic worth as the moneyed and connected.

  5. …shall not be infringed. Why can’t the SCOTUS realize that means the only gun law IS the 2nd A?
    Because they do not want/care to. They believe they have the right to strip We The People of ours.

    • They can’t disentangle themselves from precedent (bad) set by all their “enlighted” prog predecessors of a century ago. Just can’t reject all the activist drivel so wrongly decided then. MORE than willing to ignore the century preceding.

  6. The-” Supreme”- Court. Ha ha ha
    You’d think 9 people with a 8th grade education could find the meaning of the word infringed.
    I guess when your Supreme you dont need to know.

  7. If Shoulda Woulda Coulda all got together Something might have Happened. Continuing to wait for Politicians or The Courts to Do what is the Responsibility of “We the People” has gotten many where they are now in Regards to their Rights being Infringed. Pissing and Moaning on the Interweb Ain’t gonna get it Done Either.

    • Agreed, mere pissing and moaning doesn’t help.
      What WILL help is to muster our collective insights to come up with as many novel angles of analysis which might help the appellants make their case.

      Another thing that should help in the long run is to find arguments, or more importantly, terse ways of putting the arguments, which may eventually erode opposition to gun-rights. The power of the meme.

      • The Democrat Party is making the best arguments for 2A Rights by their very actions. Commiefornia is releasing 76,000 Violent and Repeat Offender Felons under the Criminal Justice banner. Many other Democrat controlled states are and have been emptying the prison systems under the same banner. Democrat governor’s and mayor’s are turning a blind eye to ever increasing violence, murder and mayhem in their states and cities. Allowing criminals to prey upon defenseless citizens due to LE defunding and orders to Stand Down in the face of violent anarchist (BLM Antifa). These are the things that have driven Millions of Citizens to become New Firearm Owners. Democrat have for decades used the Idea of perceived dangers to manipulate the emotions of their Acolytes. Now that danger is no longer perceived, but Real and in the face of Millions of citizens who have been betrayed by their perceived Democrat protectors. These are the citizens who POTG need to bring into the 2A Fold, Welcomed with open arms and the realization that regardless of what “We the People” may disagree on most everyone wants to feel safe in their own home,business and community. Keep Your Powder Dry

  8. Has or does anyone else get that link advertised.
    Do you support Bidens assault weapons ban?
    Anyway I clicked on it and the answers were
    Yes: keep me safe.
    NO: keep America free.
    If that ain’t a crock of sht.

  9. A minor nit –

    Mark wrote : “New York bars openly carrying handguns.”

    When I first read it, I thought that was an incomplete sentence about bars that serve alcohol.

    The sentence would be better if phrased – “New York forbids openly carrying handguns.”

    Anyways – About the upcoming case – Could this case be a part of a strategy by Thomas to “build a foundation” for a case like the Hawaii carry case?

  10. Respectfully, attempting to draw lines of “permissible” and “abusive” with Democrats is a complete waste of time. They will twist and abuse it or simply ignore it until they get what they want. They have ignored Heller and all of the other cases and only alter their agenda slightly if it looks like they might lose a round. Then they go right back to their old ways.

    The only long-term effective solution is to look at the permitting of a Constitutionally protected right, determine that there is no license required to go to church, no license required to associate with your friends, no license required to speak your mind and no license required to enjoy the protections of the Fourth and Fifth Amendments. Requiring permits at all stands the Bill of Rights on its’ head. Just as the power to tax is the power to destroy, so too the power to permit is the power to deny permits anytime and anywhere, to revoke, rescind or vacate them. They will do that with guns and everything else unless SCOTUS puts a halt to licensing schemes altogether.

    After all, the State still has recourse to remove guns from criminals. They simply have to go through the lawful process of proving they’re a criminal beyond a reasonable doubt in front of a jury before someone loses that right. In Maryland as an example, they’ve returned felons’ right to vote after they have completed their sentence, but no firearm rights. None. How do they regulate that? By requiring licenses for even 150 year old six-shooters which they classify as “assault weapons.” It is absurd. They simply can’t be given permission to finagle any process restricting a Constitutional right.

  11. ‘Mark wrote : “New York bars openly carrying handguns.”

    When I first read it, I thought that was an incomplete sentence about bars that serve alcohol.’

    Same when I read it; but my mind auto-corrected “bars” to “bans”.

  12. Do You support Bidens Assault Weapons Ban
    Yes: Keep me safe.
    No: Keep America free.
    Pretty much sums up the mindset.

    • And yet logic provides the irrefutable answer:

      Keep me safe = impossible. Even with a police state. Perhaps especially with a police state.

      Keep America free = possible. In fact, this is preferred and far more preferred than a police state.

  13. The Supremes rewrote the question of what they are going to consider in the New York case.
    It’s going to be very narrow consideration of the question “is self-defense a sufficient reason to have a carry permit.”?
    The ninth circuit has the case Young versus Hawaii, where the court just declared that Hawaii can forbid both concealed and open carry.
    If they grant CERT to young, then they will have the chance to decide both if self-defense is sufficient reason and must a state allow either open or concealed carry outside the home.
    Heller decision has already declared that you can have a gun inside your home.
    So these are both huge cases for us gun people.

    • “It’s going to be very narrow consideration of the question “is self-defense a sufficient reason to have a carry permit.”?”

      I’m wondering if re-writing the question to be so narrow is a deliberate strategy by Justice Thomas and (new) friends.

      LKB mentioned a strategy to make it much harder to to tear Heller down in the future. He described it as a ‘building blocks’ approach. This decision will settle “is self-defense a sufficient reason to have a carry permit.”?

      Then ‘Young’ (or other cases) could settle the nuts-and-bolts of how it is to be done.

      Anyways, I’m not quite ready *yet* to go full ‘chicken little’ “The sky is falling! The sky is falling!” on the SCOTUS re-writing the question to be settled… 🙂

      • “LKB mentioned a strategy to make it much harder to to tear Heller down in the future. He described it as a ‘building blocks’ approach.”

        This is important. There is a book titled The Law of Judicial Precedent. There is quite a lot of complexity to it.

        Consider the analogy of a cable or rope. A single strand of steel or fiber can be cut more easily than a cable or rope of many strands.

        A step farther, a finely woven fabric. Only a few interleaved strands of a coarsely-woven fabric need to be cut to start a rent. If many finely-woven fibers must be cut it’s harder to start the rent.

        In a sensitive area such as 2A SCOTUS will want to move slowly step by step. At each step the justices who want to advance the cause will strive to tie-in reasoning and interests to other rights and precedents. The more each case can be based on reasonings in precedents and interests that are invested in, the more difficulty a subsequent court will have in reversing the process. To reverse the 2A advances they will have to threaten those other interests.

        For example, in Caetano the justices reasoned that the 2A is ‘not just for muskets anymore’. The concurrence quoted Heller:

        We found the argument “that only those arms in existence in the 18th century are protected by the Second Amendment” not merely wrong, but “bordering on the frivolous.” 554 U. S., at 582. Instead, we held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Ibid. (emphasis added).3 It is hard to imagine language speaking more directly to the point.

        Caetano didn’t have to plough new ground, it simply re-affirmed what was said in Heller; albeit that discussion (“even those that were not in existence at the time of the founding”) was mere dicta not necessary to the holding in Heller. Yet, the reasoning quoted WAS NECESSARY to the holding in Caetano.

        Now, suppose a subsequent court wants to take a 180 degree turn on modern arms. They will have to explain their reasoning in light of the unanimous Caetano decision; much harder than dismissing the language quoted from Heller “dicta”.

        This building-block approach, especially where the blocks are carefully placed to interlock with as many other blocks as possible, will ultimately prove important in raising impenetrable – at least formidable – barriers to future court’s desires to reverse course.

  14. I refer to the current Democrats as wokecusts. Woke locust who devour everything in their path leaving a wasteland behind.

  15. in 2008 and 2010, SCOTUS honored the Second Amendment by, well, actually reading it for the first time in dozens of years.

    I wonder what SCOTUS will do this time. After all, reading is so hard on the eyes — it often made Thurgood Marshall and Ruth Bader Ginsburg fall asleep — and hurts their widdle heads.

  16. I’m pretty sure that the 2A is going to take a heavy hit from SCOTUS. Roberts and his new pals haven’t made a ruling that was orginalist or even sensible since Barrett got selected.

    I doubt he would’ve taken any 2A suits if she wasn’t on the bench.

    We’re screwed. prepare for civil disobedience and drastic decision time.

  17. You know what’s wrong?
    The Law says this, the Law says that, they can’t do this they can’t do that.
    To much faith in The Law

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