Short Circuit 174 Anthony Sanders 00:06 Hello, and welcome to Short Circuit your podcast on the Federal Courts of Appeals. I'm your host Anthony Sanders, Director of the Center for Judicial Engagement at the Institute for Justice. If you enjoy this podcast, you should check out our newsletter and often an irreverent take on certain Court of Appeals opinions, which we publish every Friday, you can subscribe at shortcircuit.org or find it on the Volokh Conspiracy Blog. And please check out our sister podcast, the documentary series, Bound by Oath. We're recording this Thursday, May 20, 2021. And we are very pleased to be bringing you a special short circuit with a special guest, David Kopel is a familiar name to many of our listeners. He is a man who wears many impressive hats. A research director of the Independence Institute, associate policy analyst with the Cato Institute, adjunct professor of law at Denver University Strunk College of Law, longtime blogger with our friends at the Volokh Conspiracy, which is probably how many listeners know him, and perhaps most importantly, a fiercely proud Coloradoan. Over the years in which I've looked for cool headed, deeply informed, and rational discussion on gun issues in the Second Amendment. David has always been the first voice I've turned to. So, it made a lot of sense to have him on Short Circuit now that the issue of the Second Amendment in the form of the right to carry is now not only back before the Supreme Court in the case, New York State Rifle and Pistol Association v. Corlett, but also still bubbling along in the court of appeals with the case Young v. Hawaii that the Ninth Circuit recently decided. David is going to help us sort out what the Supreme Court is looking at with the New York case, what's the simmering relevance of the Ninth Circuit's case, the underlying issues the court is looking at and what we might expect from the court when it rules next term. So, David, thank you so much for joining us on Short Circuit. David Kopel 02:00 I'm happy to be here. And I love your weekly newsletter, it is a fantastic resource. Anthony Sanders 02:07 Thank thanks so much. It's a lot of fun to write. And it's even more fun, I know, for our readers to listen, sorry, to read. So, I'm going to assume our listeners know about the case, Heller v. District of Columbia from 2008, which said the Second Amendment protects a right to have a firearm in one's home. But the - 1 - Transcribed by https://otter.ai question which the follow up case, in the follow up case, mostly left open, was how does that right extend beyond the home. And that's what these latest cases, of course, are addressing. So before we get to the constitutional issues, though, and all the relevant history, maybe let's get started with a couple terms we're going to hear a lot about over the next year, if you haven't already: concealed carry, and open carry. The cases we'll be discussing concern whether the Second Amendment protects the right to carry a firearm outside the home. But sometimes that's in the context of concealed carry, sometimes open carry. So, for someone like me who really doesn't know much about guns, why is there a distinction often in the law between conceal and open carry, apart from the obvious of exactly what they mean? So, if you're a responsible gun owner, why would you prefer one versus the other? And why is that they so often differently regulated? David Kopel 3:30 The tradition of different regulation starts in approximately in 1813 or so in a couple of states, like Kentucky and Indiana, which had state constitutional right arms protections in their own state constitutions, as well as, at the very least caring about the spirit of the Second Amendment. And those state legislatures banned concealed carry only while allowing open carry. The Kentucky Supreme Court said you can't do that. The Indiana Supreme Court said you could in a one sentence opinion. And over the course of the 19th Century, the dominant approach of the state courts was to uphold concealed carry restrictions, as long as open carry was available. Their view was you've certainly got the right to bear arms from your state constitution, but the legislature can regulate the mode of how you do so. A different approach would be which would be more purely originalist would say well as of 1776, or, most importantly 1791, when the Second Amendment was ratified by the states and the people, no state, restricted, open versus concealed carry, they just left that choice up to the individual Anthony Sanders 05:00 And if you're a gun owner in a state where? Yeah, this might be a basic question. But if you're a gun owner in a state that say has both, which is a lot of states these days, what why might you pick open carry versus concealed carried, if you're in crowded environment? Concealed carry is just a safer bet or it's less alarming? What's the reason why people pick one or the other? David Kopel 05:22 there are good reasons for both. So, exactly, if you live in an area with a bunch of hoplophobes, that that's actually something that is an identified mental disorder. Just like any kind of phobia can be a mental disorder, you know, arachnophobia, you're afraid of spiders, all those things. And some people - 2 - Transcribed by https://otter.ai just get freaked out and don't like seeing a gun no matter how peaceful the circumstances. So maybe out of protecting their sensibilities you deal with concealed carry, or for whatever other reason, you just don't want to have that be a visible thing. On the other hand, open carry for the individual is a more visible deterrent. So, if you're walking down the street, and you want to make sure the criminal who's watching people come by and you know, from, say, from an alleyway, who am I going to mug, and he sees you walk by with a gun in a holster on your belt? He says, I'll skip that guy. Anthony Sanders 06:30 I see. David Kopel 06:31 And it can be depending on the situation, it can be in an emergency, it can be faster to access the firearm, if it's open carry. Anthony Sanders 06:40 Now, the case that the Supreme Court has taken is a case concerning concealed carry. And I believe that's because in New York State, you can apply for a concealed carry permit, although it's hard to get, but there just is no open carry. David Kopel 06:57 That's right. So that's correct. Anthony Sanders 07:00 So what's the genesis of that case? And one interesting thing I found about that case is the Second Circuit's opinion is two pages, which usually doesn't make for epic Supreme Court appeals. But in this case, there's some background there. So, tell us a bit about that. Sure. So, after District of Columbia vs. Heller was decided in 2008. And then, the follow up case, McDonald v. City of Chicago in 2010. Would said the 14th amendment makes the Second Amendment right to arms enforceable against state and local governments. Challenges began coming up in the now fairly small minority of states that don't respect the right to bear arms. In 42 states as a statewide matter, you can get a concealed carry permit. If you are a law-abiding adult who can pass a background check and a safety training class. And you've offered the background check is more intense than just to buy a gun, that the buying a gun in a store is a kind of a name, and Id check where you show your driver's license, a concealed carry permit would be more likely to require fingerprinting, and several weeks or more to process those fingerprints against - 3 - Transcribed by https://otter.ai the various databases. But there's a minority of states and New York is one of them, where the right to bear arms is not respected. In some counties in New York. They do respect the right and will issue a permit to somebody after a proper background checking and maybe a little investigation. In others, such as New York City, you only get one if you're a celebrity, or maybe a security guard or a, you know, let's say a diamond merchant, or a doctor who's carrying narcotics while making house calls. So New York State like Massachusetts, Rhode Island, in California, and actually Delaware to some extent to is pretty variable. Whether you can get a permit or not depends a lot on the county you live in other jurisdictions, namely Hawaii, and New Jersey and Maryland, somewhat, are much more restrictive. And just as a statewide matter, you can in essence, almost never get a permit. In New Jersey, even if you were a diamond merchant, who had been robbed six times in the past 15 years, they still wouldn't give you a permit because you wouldn't be able to say well, there's some specific guy I know who's going to try to rob me.