On September 17th, I am heading down to Washington, DC to participate in a day-long conference at the Cato Institute. The 17th of September is the anniversary of the day the US Constitution was signed in Philadelphia in 1787. In celebration of that day, every year the Cato Institute does a complete review of the prior year’s Supreme Court term. The panels will be comprised of legal scholars from across the country, including academia, practitioners, and Cato Legal Fellows.
Given the breadth of the session, I suspect 2nd Amendment-related questions will make only guest appearances in the menu of topics, and I will follow this article up with a breakdown of the event after I return. Of particular interest to me is the final session of the day: a look ahead at the coming Supreme Court term.
I am eager to see what themes and topics Cato has in store for us, but thinking about last term inspired me to plant some ideas.
Many of us are heavily focused on 2nd Amendment-related topics. But in thinking about last term and the narrower 2A-related questions the Court wrestled with, those cases truly reveal the intersectionality of civil rights and liberties in general.
Often, when the government seeks to limit one right, lines get blurred and many other Constitutionally protected rights and liberties become implicated. As such, we can’t be so narrow in our focus. Many will quip that the First Amendment is protected by the Second Amendment. But conversely, we can’t defend the Second Amendment without defending the First Amendment… or the Fourth Amendment… or the Fifth Amendment, and so on.
The Rahimi case ended up having more to do with due process than the Second Amendment. And in NRA v. Vullo, we saw the State of New York attack free speech in order to suppress organizations that protect Second Amendment rights.
Now think of the themes of American history over the last twenty or thirty years: global terrorism, financial market crises, economic crises, and what has that led to? Political volatility and division. Why? In dealing with the issues we have been presented with over the last several decades, the government has been using the same playbook and the collateral damage has been ALL of our civil rights and liberties. Free speech, due process, warrantless searches and seizures, the prohibition on cruel and unusual punishment, privacy, and, alongside all of that, a renewed and growing push at the federal and state level to limit Second Amendment rights.
And what does that inevitably lead to? Growing mistrust in the institutions of government. And where are we today? A seriously unstable political environment.
In the study of physics, we have some basic laws that cannot be violated, one of which is that matter cannot be created or destroyed. In high school chemistry, we learned that chemical reactions have to mathematically balance. Government works the same way: the government cannot expand its role without limiting individual rights and freedoms. That is the unavoidable cost of the expansion of government authority no matter what the intentions are behind that expansion.
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So let’s bring my rambling here back home. I have for several years now been working to draw attention to equal protection issues that are blended into New Jersey’s response to NYSRPA v. Bruen: the blatant and obvious racism contained in the State’s policy response to the striking down of “may issue” concealed carry permitting systems.
I and several colleagues testified in Trenton on these exact issues. When the Bruen response bill was first exposed to the public in 2022, we had hoped that the obvious racially disparate impact these policies would have was an unintended consequence. We had hoped, through our testimony back then, to engage in actual dialogue and for policymakers to at least seriously weigh the issues. Instead, to our shock and dismay, those policymakers said the quiet part out loud, on the record, in clear unequivocal terms:
The racist and classist implications of the Bruen response bill weren’t an unintended consequence. Limiting the rights of the poor and minority groups was the explicit goal.
Over the past year or so, many of the writers here have tried to draw attention to this massive issue. John Petrolino has relentlessly covered this. Through John’s research, through the NJNICS Research Center’s work, and numerous posts from many concerned members of our community on social media, we and many others have uncovered stark data that demonstrates just how racially disparate the outcomes are in firearms-related applications.
The laws in this state create economic barriers to exercising a Constitutional right. Those economic barriers are calibrated to disproportionately impact applicants on racial and ethnic lines. We see denial patterns on racial and ethnic lines. The State, last year, addressed part of this problem in the most nefarious way possible. They just stopped reporting data on Hispanic/Latino applicants and blended those groups in their reports with White applicants. That decision alone is highly legally suspect.
Prior to that decision, the denial rates on Hispanic and Latino applicants appeared worse than the denial rates for Black applicants. And now we will simply never know since they decided to sweep the issue under the rug. And against that backdrop, the State made it infinitely harder to obtain that information via OPRA requests (our State law equivalent to the Freedom of Information Act). But the bigger issue is the number of people that are flat-out prevented from even applying, not just the patterns in denials.
The Second Amendment is only one piece of this equation. These actions by the State invoke a whole range of civil liberties and rights-related questions, not the least of which include equal protection and substantive due process claims. And the trampling of these rights perpetuates a cycle of racially disparate criminalization and incarceration that the political party in power in Trenton claims to care so much about. The level of hypocrisy is painful to watch.
The point of all of this:
- We don’t have the luxury of picking and choosing which civil liberties we advocate for. We have to see ourselves as champions of them all (and I believe most of us do!).
- As we head into an important federal election cycle followed by what I would argue is an even more important State election next year, educating the public on the intersectionality of civil rights and liberties builds bridges and common cause. As advocates, we have to help others see the forest through the trees.
There is much to look forward to in the coming Supreme Court term. But in Court and the polls over the next year, we need to fight on multiple fronts.
