by Bob Barr
On Nov. 3, exactly one year from last year’s presidential election, the United States Supreme Court will hear arguments on a landmark Second Amendment case challenging New York’s century-old law making it next-to impossible for the average citizen to obtain a permit to lawfully possess a handgun outside their home.
To no one’s real surprise, the Biden administration last week filed a brief urging the High Court to dismiss the challenge to New York’s restrictive handgun law. What is interesting are the absurd, bordering on laughable, arguments the Biden Department of Justice makes in support of its position.
If one were to take the administration’s legal brief as historically correct, one would conclude that the United States is a nation founded on firearms restrictions rather than firearms freedom. Moreover, the Justice Department lawyers declare that New York’s highly prohibitory handgun permitting law is “most modest”!
To this Justice Department, giving state bureaucrats near-absolute power to decide whether a law-abiding citizen may exercise his constitutionally guaranteed right to possess a handgun for self-defense “fits comfortably” within what the Department considers the long “history and tradition” of government regulation of weaponry, going all the way back to at least 1285. That was the year, according to our Justice Department, when the British Parliament prohibited Englishmen from “wandering” around London after curfew carrying swords or other arms “for doing mischief.”
British royals prohibiting the carrying of weaponry, as cited by Biden’s legal eagles, include King Henry VIII, Queen Elizabeth I, King James I, and others. With a pedigree such as these rulers preventing their subjects from carrying “little short handguns” and “pocket daggers,” it would be easy to consider New York’s restrictions “modest.”
Seemingly lost on Biden’s team of crack attorneys, is the historic fact that citizens in these United States are not and never have been “subjects” such as those in historic England, and none of these rulers in the country from which we fought for, and achieved, independence, had to contend with the inconvenience of a constitutional guarantee of the right to possess a firearm.
Both New York state and New York City are breeding grounds for ultra-liberal mayors and governors with a lust for controlling citizens’ lives (a predisposition on full display over the past year-and-a-half of the COVID pandemic). To them, and to the Biden administration, placing into the hands of government officials the near-absolute power to decide whether to grant a citizen permission to carry a handgun for self-defense outside the home is not only “modest” but downright beneficent.
To be sure, the New York criminal law does not absolutely ban the issuance of a handgun permit for a citizen’s self-defense. The state is too clever for that. Instead, the law dictates that a citizen may be granted such a carry permit if he or she convinces the issuing official that they have “an actual and articulable … need for self-defense.” This vague and arbitrary burden on the free exercise of a constitutionally guaranteed right is seen by the state of New York and Biden’s Justice Department as entirely proper and “modest,” despite presenting a demonstrably near-insurmountable legal obstacle to overcome.
In furtherance of its support for New York’s restrictive handgun law, the Justice Department lawyers argue accurately that guns carried in public “can be used for murder, rape, robbery, assault, and more.” In fact, criminals do just that regularly in New York City especially. What does not follow, by logic, reason, or history, is that restricting the ability of law-abiding citizens to possess handguns outside their home to protect themselves against those very sorts of crimes, is a “reasonable” restriction on the Second Amendment.
In virtually every other constitutional context, permitting bureaucrats to exercise arbitrary and capricious power such as officials in New York (and several other states) now possess under this challenged law, would be deemed unconstitutional on its face.
It may have been considered perfectly okay for Henry VIII to arbitrarily and capriciously deny his subjects the ability to protect themselves in public, but not the governor of New York or the President of the United States. Hopefully a majority of Supreme Court Justices will make that point when it renders a decision in this case next year.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.