Supreme Court Poised To Expand Gun Rights

Justices weigh striking down NY concealed carry restrictions

Kevin Daley • November 3, 2021 3:45 pm

The Supreme Court looked poised on Wednesday to strike down New York’s restrictions on the concealed carry of firearms, a victory for Second Amendment rights.

The justices heard arguments over New York’s “proper cause” rule, which requires residents to prove a special need for self-protection to obtain a concealed carry license. The conservative justices were troubled at the wide degree of discretion New York’s rules give law enforcement in granting the permits.

“You can say that the right is limited in a particular way, just as First Amendment rights are limited, but the idea that you need a license to exercise the right is unusual in the context of the Bill of Rights,” Chief Justice John Roberts said of New York’s law.

The Court’s ultimate decision will have consequences for gun owners nationwide. Seven states have cause-based requirements for carry licenses, all of which will be imperiled if New York’s statute falls. And lower federal courts are deeply divided over the right legal test for assessing limitations on gun rights. Second Amendment groups have pressed the Supreme Court for guidance for over a decade, and it may be forthcoming in Wednesday’s case.

The particulars of New York’s rule vary somewhat by location, but it generally requires an applicant to prove to local law enforcement that they have a unique need to protect themselves distinguishable from the public at large. The New York Police Department requires a showing of “extraordinary personal danger, documented by proof of recurrent threats to life or safety.”

Paul Clement, who represented the gun-rights plaintiffs, told the Court the costs of discretion-based rules are disproportionately borne by the disadvantaged. He pointed to an amicus brief from a civil rights group that argues New York’s rule has racist origins and continuing discriminatory effects.

Justice Samuel Alito also drilled down on the practical implications, asking New York solicitor general Barbara Underwood if the state’s law privileges favored groups over ordinary people like doormen or hospital orderlies who often commute long distances at unusual hours.

“Does it mean that there is the right to self-defense for celebrities and state judges and retired police officers but pretty much not for the kind of ordinary people who have a real, felt need to carry a gun to protect themselves?” Alito asked.

Underwood countered that the state is concerned with keeping the number of carry permits down in highly populated areas. She raised the prospect of multitudes or armed citizens crowding the New York City subway, where low-grade conflicts and unpleasant encounters could quickly escalate with deadly consequences.

“If you go right to history and tradition, the history was to regulate most strenuously in densely populated places,” Underwood said. “Where there is dense population, there is also the deterrent of lots of people and there is the availability of law enforcement.”

That justification troubled several members of the Court. They found it counterintuitive to recognize self-defense interests in rural areas but curtail them in urban areas.

“How many muggings take place in the forest?” Roberts asked.

Certain sensitive places like stadiums or university campuses pose a potential wrinkle. The justices asked lawyers on both sides how they could craft a decision that is faithful to the law while recognizing the importance of keeping guns out of particular venues. Justice Amy Coney Barrett said the state could legitimately keep guns out of Times Square on New Year’s Eve, for example. Underwood said it’s too hard for courts to identify every sensitive location, especially in New York City where conditions can change by the minute.

“When commerce is in full swing, Times Square almost every night is shoulder-to-shoulder, people,” Underwood said. “So then you end up having a very big difficulty in specifying what all the [sensitive] places are.”

As to the question of the right legal test for gun-control laws, Clement offered three alternatives. First, he said restrictions should be analyzed in light of the history and tradition of gun rights in England and the United States. Alternatively, the Court could subject any gun-control measure to the highest degree of legal scrutiny, an outcome Second Amendment groups strongly favor. Finally, Clement said the Court could simply strike down New York’s law as an extreme outlier, but say nothing more. It was not evident by the end of the argument which avenue the majority would take.

The New York State Rifle and Pistol Association and two citizens who were denied full permits are challenging New York’s law on constitutional grounds. They lost in a federal trial court and before the Second U.S. Circuit Court of Appeals. The Biden administration is backing New York state.

A decision in the case, No. 20-843 New York State Rifle and Pistol Association v. Bruen, is expected by summer 2022.