CGF Files Brief Urging the Supreme Court to Uphold Second Amendment Right to Publicly Carry Arms

WASHINGTON, D.C. (July 20, 2021) — Today, the California Gun Rights Foundation (CGF) announced the filing of an important merits-stage United States Supreme Court brief in the case of NYSRPA v. Bruen, a challenge to New York’s “proper cause” scheme for the issuance of licenses to carry arms in public.

The brief, written by Erik Jaffe, argues that in the 13 years since the Supreme Court decided Heller, lower courts have systematically ignored or circumvented the central holdings of that case, taken every opportunity to diminish Second Amendment rights, and applied malleable standards of constitutional review that do not remotely satisfy the heightened scrutiny required by Heller.

“Given the active and unabashed resistance in the lower courts to enforcing the enumerated right to keep and bear arms, it is well past time for the Supreme Court to issue a course correction and impose some clear guardrails to ensure that individual constitutional rights are respected by legislatures and courts,” said Jaffe. “Rather than the free-wheeling balancing tests applied in the courts to reach whatever conclusion they prefer, the Supreme Court should require a categorical test based on the text of the Constitution, as informed by history and practice, to better protect those rights. And if any so-called ‘tiered’ scrutiny is needed in special cases, it should be ‘strict’ or ‘exacting,’ as in the First Amendment context, not abject deference to legislatures masquerading as ‘intermediate’ scrutiny.”

The brief concludes by noting that, “In the many years since Heller and McDonald, the lower courts have engaged in near-constant destruction of the right to keep and bear arms. To prevent more such malfeasance, this Court should adopt a less manipulable categorical approach to protecting Second Amendment rights. And to the extent it preserves tiered scrutiny for some subset of cases, it should hold that strict or, at the very least, exacting scrutiny is the proper test and should firmly remind the lower courts what such scrutiny entails in the Second Amendment context as elsewhere. The decision below should be reversed and New York’s restrictive carry licensing scheme declared unconstitutional.”

“Much like California’s own unconstitutional ‘may-issue’ laws, New York’s Sullivan Act must be declared unconstitutional in this case,” said CGF Chairman Gene Hoffman. “As our brief explains, under constitutional scrutiny consistent with the Court’s Heller and McDonald decisions, states and local governments must fully respect the Second Amendment right to carry firearms outside the home. CGF was founded in 2008 in part to ensure that California’s licensing authorities allow law-abiding individuals to carry in public for self-defense, and this important brief helps us accomplish that goal. We look forward to further litigating the right to bear arms following the Supreme Court’s decision in this case.”

California Gun Rights Foundation (www.cagunrights.org) is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to advance Second Amendment and related civil rights.

Erik S. Jaffe (www.schaerr-jaffe.com) is a 1990 graduate of the Columbia University School of Law and was a law clerk to Judge Douglas H. Ginsburg of the United States Court of Appeals for the District of Columbia Circuit from 1990 to 1991. Following that clerkship he spent five years in litigation practice with the Washington, D.C. law firm of Williams & Connolly. In the summer of 1996 he left Williams & Connolly to clerk for Supreme Court Justice Clarence Thomas. At the end of that clerkship he started his own practice, and was a sole practitioner from 1997 through 2018.  At the end of 2019 he teamed up with veteran Supreme Court litigator Gene Schaerr and others to form Schaerr|Jaffe LLP, a Washington, D.C. based boutique law firm specializing in high-profile trial and appellate litigation. Mr. Jaffe has been involved in over 100 Supreme Court matters, including filing over 30 cert. petitions, representing half-a-dozen parties on the merits, and filing over 60 amicus briefs at both the certiorari and merits stages.