To Keep and Bear Arms: Sometimes a Duty, Ever a Right

by | Oct 18, 2021

To Keep and Bear Arms: Sometimes a Duty, Ever a Right

by | Oct 18, 2021

Supreme Court & Second Amendment

On November 3, the U.S. Supreme Court will hear oral arguments in New York State Rifle & Pistol Association v. Bruen. The case will decide whether the Second Amendment’s right to “bear arms” is an actual right. Or conversely, if law-abiding adults who pass a biometric background check and safety training course can be denied a concealed carry permit simply because officials choose to only issue concealed carry permits when they feel that the applicant has a special need.

This case, along with another case Young v Hawaii, are both on the docket for the Court’s fall term. It is important that Second Amendment advocates be aware of these cases as they develop because the Biden administration continues to make unreasonable demands to the Court in how they should handle this case. The solicitor general has at various times filed motion to vacate, more recently filing an Amicus brief that essentially makes the argument that you have no Second Amendment right whatsoever outside the home for any reason. And yesterday the solicitor general filed a motion for leave with the Court, requesting the Court make the federal government a party to this case and have requested time during oral arguments for them to argue the case in-person. Unsurprisingly, the appellant is opposed to what would be an incredibly uneven distribution of time, seeing as how the respondent and the solicitor general would both be making separate oral arguments where they both intend to say pretty much the same thing; allowing a state & federal gun grabber double team to argue against the appellant.

It’s also important to keep in mind that Joe Biden has been pretty consistent when asked about plans to pack the Court; that he has not reached any final conclusion yet, but that the Court would essentially make the choice for him on two specific issues: abortion and gun rights. For him a red line (or in this case a red flag, perhaps) is any ruling that is seen as favorable to the Second Amendment community or the pro-life movement. He seems to have taken the modern myth of the “switch in time” to a whole new level. The “Switch In Time” relies on the incorrect assumption that the way President Franklin Roosevelt was able to get the Supreme Court to stop striking down his unconstitutional New Deal programs was through his threat to pack it with new justices (read: sycophants). In the 1937 case of West Coast Hotel v Parrish, the Court upheld a minimum wage law for women not based on FDR’s political pressure, but on the merits of the case.

Biden has beaten FDR at his own game for having the audacity to go beyond vague threats to very particularized demands that resemble an extortion racket.

It’s also worth noting that conservatives feel much more secure than they probably should in a belief that Donald Trump’s appointments have shifted the Court to a 6-3 split between conservatives and liberals. There are several compelling reasons to doubt that.

Generally, it’s worth noting a trend in the Court that when liberal presidents get elected they tend to appoint liberal justices and the Court shifts in a liberal direction. When conservative presidents get elected they tend to appoint conservative justices and the Court still shifts in a liberal direction.

In regards to the new Roberts Court, we do not have a 6-3 conservative court. We have what constitutional lawyer Josh Blackman has identified as a 3-3-3 Court.

Clarence Thomas, Samuel Alito, and Neil Gorsuch are on the right. John Roberts, Brett Kavanaugh, and Amy Coney Barrett are somewhere to the left of the right. And Stephen Breyer, Sonia Sotomayor, and Elena Kagan will do anything to form a majority. The chief justice may have been conservative at one point, but he has embarked on a life-long odyssey to pilot the Court to middling moderation. Justice Kavanaugh was always cut from the same cloth as Chief Justice Roberts. He played the part to get the job, but has consistently showed his true colors. And Justice Barrett is not who conservative voters thought they were getting.

Finally, as a matter of common sense, no one should ever be optimistic at the prospect of reclaiming true individual liberty by asking the federal government to limit the power of the federal government.

Whichever way this case goes, it will almost certainly become a landmark Second Amendment case, right up there with DC v Heller (2008) and McDonald v Chicago (2010).

So what is the case all about and what precisely makes it so important?

The law at issue in the case New York Rifle & Pistol Association v. Corlett is similar to gun-control measures in other states. To receive an unrestricted license to carry a concealed firearm outside the home, a person must show “proper cause”—meaning a special need for self-protection. They do not issue permits for the general purpose of lawful self-defense. Gun rights advocates often point out that even under ideal circumstances where you can call the police to protect you from an imminent threat and every second matters, the police are at least minutes away. An unarmed individual facing an imminent existential threat rarely has the several minutes of relative security needed to call the police and for them to arrive. That’s if they come at all, which they are not obligated to do. How can the state of New York expect someone facing an imminent existential threat to fill out a permit to carry application explaining the imminent threat to your life which refers to a guy who’s cornered you in an alley, put a knife to your throat, and is demanding your wallet.

Two men challenged the law after New York rejected their concealed-carry applications, and they are backed by a gun-rights advocacy group. The U.S. Court of Appeals for the Second Circuit upheld the law, prompting the challengers to appeal to the Supreme Court.

After considering the case at three conferences, the justices agreed to weigh in. They instructed the parties to brief a slightly narrower question than the challengers had asked them to decide, limiting the issue to whether the state’s denial of the individuals’ applications to carry a gun outside the home for self-defense violated the Second Amendment. (We will return to the importance of the limited question presented later). But Prima Facie, this case nonetheless has the potential to be a landmark ruling.

The announcement came just one day short of one year after the Court’s ruling in a different challenge brought by the same gun-rights group. That case involved New York City’s ban on the transport of licensed handguns outside the city. Because the city had repealed the ban before the case reached the Supreme Court, a majority of the Court agreed with the city that the challengers’ original claims were moot—that is, no longer a live controversy. In a concurring opinion, Justice Brett Kavanaugh agreed that the case should return to the lower court, but he also indicated that he shared the concern—expressed by Justice Samuel Alito in his dissenting opinion—that the lower courts “may not be properly applying” the Supreme Court’s most recent gun-rights rulings, District of Columbia v. Heller and McDonald v. City of Chicago. Therefore, Kavanaugh urged the Court to “address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari” then pending before the justices, several of which involved the right to carry a handgun outside the home for self-defense.

Shortly after issuing that decision, the Court distributed for consideration at its May 1, 2020, conference ten gun rights cases that they had put on hold while the New York City case was pending. The justices considered those cases at six consecutive conferences before finally denying review of all ten in June.

Justice Clarence Thomas dissented from the Court’s decision not to take up at least one of the ten cases. In an opinion that was joined in part by Kavanaugh, Thomas argued that the Supreme Court would likely grant review if a law required someone to show a good reason before exercising her right to free speech or to seek an abortion. However, Thomas continued, the Supreme Court had opted to “simply look[] the other way” when “faced with a petition challenging just such a restriction on citizens’ Second Amendment rights.”

There is no way to know why the justices turned down the petitions for review last year. Commentators speculated that some conservative justices may not have been confident that Chief Justice John Roberts would provide a fifth vote to expand gun rights. However, since then Justice Ruth Bader Ginsburg was replaced by Justice Amy Coney Barrett, whose vote as a judge on the U.S. Court of Appeals for the Seventh Circuit suggests that she might take a broader approach to the Second Amendment.

In cases before the United States Supreme Court, the Court certifies questions presented to the Court on which arguments must be centered. In this case, the court has accepted the following question to resolve:


New York prohibits its ordinary law-abiding citizens from carrying a handgun outside the home without a license, and it denies licenses to every citizen who fails to convince the state that he or she has “proper cause” to carry a firearm. In District of Columbia v. Heller, this Court held that the Second Amendment protects “the individual right to possess and carry weapons in case of confrontation,” 554 U.S. 570, 592 (2008), and in McDonald v. City of Chicago, the Court held that this right “is fully applicable to the States,” 561 U.S. 742, 750 (2010). For more than a decade since then, numerous courts of appeals have squarely divided on this critical question: whether the Second Amendment allows the government to deprive ordinary law-abiding citizens of the right to possess and carry a handgun outside the home. This circuit split is open and acknowledged, and it is squarely presented by this petition, in which the Second Circuit affirmed the constitutionality of a New York regime that prohibits law-abiding individuals from carrying a handgun unless they first demonstrate some form of “proper cause” that distinguishes them from the body of “the people” protected by the Second Amendment. The time has come for this Court to resolve this critical constitutional impasse and reaffirm the citizens’ fundamental right to carry a handgun for self-defense.

The question presented is: Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.


Whether the State’s denial of petitioners applications for concealed carry licenses for self-defense violated the Second Amendment.

It’s looking like 2021 with be a pivotal year for Second Amendment jurisprudence. Which direction it pivots is unclear. It may be every bit as important to the individual right to carry arms outside the home for the purpose of self-defense as Heller was in determining that the Second Amendment was an individual right for the purposes of self-defense in the home. It may render the Second Amendment a dead letter once and for all. Or it’s entirely possible the Court does what it has been doing for over a decade and chooses to punt the case, assuring us that eventually they may get around to dealing with the fact that the lower courts have been intentionally misapplying the Second Amendment by citing the Court’s Heller decision and reading in provisos that don’t actually exist.

And should the court choose protection or a punt, we may see an act of vengeance on behalf of the White House for the Court’ decision that the true meaning of the Second Amendment is the one conferred by its drafters and ratifiers, as opposed to the groundless and ahistorical meaning of the amendment according to Joe Biden.

Support The Libertarian Institute

We rely on the generosity of our donors to make all of this possible. Support The legendary Sheldon Richman, the brilliant Kyle Anzalone and our great group of writers and podcasters.

About Bob Fiedler

Bob Fiedler is a constitutional law scholar and legal commentator from the Twin Cities and host of the “Categorical Imperatives Podcast” where he discuss current events in law, politics & culture from the perspective of a constitutional lawyer and a libertarian moral philosophy. Find Bob at Substack, Odysee, Patreon, LBRY and

Our Books

6 Libooks011721lg

Related Articles


Reinhard Heydrich: Nazi Hero, Moral Monster

Reinhard Heydrich: Nazi Hero, Moral Monster

Martyr of the State Known as “The Butcher of Prague,” Reinhard Heydrich was for the government of Nazi Germany an accomplished senior figure. He had the preferred look that many racialists enjoyed, clean cut and Germanic. A man that Adolf Hitler had described as...

read more
In Ukraine, Biden Reaps What He Sowed

In Ukraine, Biden Reaps What He Sowed

Then-Secretary of State Colin Powell is given credit for popularizing the "Pottery Barn" rule of foreign policy. Though he denies using that exact phrase, in arguing against what became the disastrous 2003 U.S. attack on Iraq Powell made the point that, as in Pottery...

read more

Pin It on Pinterest

Share This