The State of New York has put in its response in the New York State Rifle & Pistol Association v. Bruen case that will be heard by the Supreme Court on November 3rd. The New York state response brief starts off making this point:
“In 1897, this Court said that it had already long been ‘well-recognized’ that ‘the right of the people to keep and bear arms (art. 2 [of the Bill of Rights]) is not infringed by laws prohibiting the carrying of concealed weapons.’ Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897).” January 25, 1897
It is interesting that J. Michael Luttig, a retired federal Appeals Court Judge and lead author of the brief, doesn’t even try to address the fact that the same court that made that decision was the same court that made the infamous Plessy v. Ferguson. That decision is one of the most racist decisions ever by the Supreme Court.
Plessy v. Ferguson, 163 U.S. 537 (1896) Segregated facilities for blacks and whites are constitutional under the separate but equal doctrine. That decision held that as long as the separate facilities were equal in quality, such separation was not unconstitutional. The Crime Prevention Research Center’s Amicus brief explains why these discretionary concealed handgun laws have been racist.
Note that there was no change in the membership of the court between these two decisions. Justice John Marshall Harlan was the member who dissented in both of these cases, and the racist history of concealed carry prohibitions prevented blacks from being able to protect themselves. The Luttig brief also doesn’t deal with the fact that even if people weren’t allowed to carry concealed, they were still allowed to carry openly.
As a final note, it is one thing to ban concealed carry. It is another thing to ban both open and concealed carry, as they do in states such as New York, which amounts to a prohibition on carrying guns. Luttig’s brief doesn’t seem to acknowledge or recognize that distinction.
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