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Supreme Court Upholds Self-Defense Rights Against the ‘Permission Society’

June 23, 2022

The U.S. Supreme Court today agreed with the Goldwater Institute and struck down a New York law that restricted the right of firearms possession to only people who could show some “special need.”

As we explained in a brief urging the Court to strike down the statute, “special need” is such a subjective notion that these types of laws effectively transform the right to possess a gun into a permission that the government can grant or withhold whenever it sees fit. “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need,” wrote the justices. “That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self- defense.”

As the Goldwater Institute explained in our policy report “Permit Freedom,” these sorts of subjective and arbitrary licensing requirements have unfortunately become pervasive in modern America, covering not only the right of self-defense, but also property rights, the right to start a business, and even the rights to free speech or to support a candidate for public office. In these and other situations, you’re often not free to exercise a constitutional right unless you first prove to a bureaucrat that you should be.

But that’s already unconstitutional, because the Court declared back in the 1950s that whenever government imposes a permit or licensing requirement on any right that the Constitution protects, three “safeguards” must be in place:

  1. The criteria for getting the permit must be clear and objective—not subjective, like “special need”;
  2. There must be an explicit deadline telling the applicant when he or she will get an answer to the permit application;
  3. The applicant must have the opportunity to challenge the wrongful denial before a neutral judge.

State and local governments regularly ignore these constitutional mandates, imposing a variety of permit requirements governed by vague standards and telling citizens they’ll get an answer whenever bureaucrats get around to it. The result is to twist our rights into privileges, and to transform our free society into a “permission society.”

Today’s Supreme Court ruling makes clear that that’s intolerable when it comes to the Second Amendment. But it’s equally intolerable with respect to all our other rights, too.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.



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