In a current case before the U.S. Supreme Court, New York State Rifle & Pistol Association v. Bruen, gun owners are challenging New York’s “proper cause law” for concealed-carry permits. Whereas the Second Amendment guarantees an individual’s right to “keep and bear arms,” New York prohibits the bearing of firearms without a license, granted on a “may issue” basis at the whims of local officials, arbitrarily determining whether a person has a legitimate need for self-defense.
On its face, this law clearly violates the spirit of the Second Amendment. Conservatives arguing to overturn it, however, find themselves in the awkward position of arguing against long-standing conservative principles like constitutional federalism and state sovereignty. Implicitly, in this case, the argument for gun rights relies on a century of progressive precedent known as the “incorporation doctrine.”
Activist courts have used this legal theory to impose left-wing policies top-down onto the states. Conservatives are right to insist on a consistent standard; if the Constitution means no school prayer in Kansas, then it also means the right to carry a gun in New York City.
In a brief to the court, J. Michael Luttig, a former judge of the 4th U.S. Circuit Court of Appeals, argues against overturning New York’s law by pointing to the founders’ view that states were free to regulate the carrying of firearms within their own jurisdictions. His assessment is historically correct, but the continued insistence on this creates a double standard under the law.
“That’s just not how we do constitutional rights,” said Justice Brett Kavanaugh during oral arguments, referring to New York’s policy of “blanket discretion” for government officials to accept or deny requests for a carry permit. Chief Justice John Roberts went further, calling the entire premise of requiring a license to exercise your right “unusual in the context of the Bill of Rights.” Under the incorporation doctrine, they are both certainly correct.