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Supreme Court leans toward expanding gun rights
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Supreme Court leans toward expanding gun rights

The conservative majority court seemed all but certain to expand gun rights, though the extent to which they do so remains murky

  • Among some gun-safety groups there were voices still holding out hope that the conservative justices expressed enough hesitation not to totally do away with all regulations and keep some limits on publicly carrying guns.
    Fibonacci Blue/CC BY 2.0Among some gun-safety groups there were voices still holding out hope that the conservative justices expressed enough hesitation not to totally do away with all regulations and keep some limits on publicly carrying guns.

New York gun restrictions on who can qualify to get a concealed-carry license drew sharp questions Wednesday at Supreme Court oral arguments, suggesting similar laws across the country could soon find themselves in a cascade of dominoes.  

The case before the court — the first of its kind in over a decade — hinges how on the Second Amendment’s phrasing of “to keep and bear arms” applies to carrying guns in public. While the court affirmed the right to keep arms in one’s home in the 2008 case District of Columbia v. Heller, there is no precedent for how those constitutional rights are applied outside the home. 

The conservative justices on the court seemed to agree with the argument by gun advocacy that citizens have the right to carry guns to use in self-defense.  

“Why isn't it good enough to say I live in a violent area and I want to be able to defend myself?” Justice Brett Kavanaugh asked. 

Some of the justices probed how New York’s licensing law was applied in terms of population. Chief Justice John Roberts said the state was more willing to grant gun licenses in less populated areas, even while crime rates are higher, creating a greater need for self-defense, in the more populated areas where licenses are granted less often. 

“It's paradoxical that you say a place is a high crime area but don't worry about it because there are a lot of police around,” the Bush appointee said. 

Roberts continued, “how many muggings take place in the forest?”  

Justice Samuel Alito said New York’s law catered to celebrities, state judges and retired police officers who would be able to receive licenses over ordinary people. 

“All these people with illegal guns, they’re on the subway, wandering around the streets, but the ordinary hard-working law-abiding people I mentioned, no, they can't be armed,” the Bush appointee said. 

Conversely, the liberal justices on the court were highly critical of the expansion of Second Amendment rights. Justice Stephen Breyer cautioned against making a ruling leading to “gun-related chaos.” The Clinton appointee gave a hypothetical about what would happen if more guns were allowed in situations with heavy drinking and angry sports fans. 

“I think that people of good moral character who start drinking a lot, and who may be there for a football game or some kind of soccer game, can get pretty angry at each other, and if they each have a concealed weapon, who knows,” Breyer said. “And there are plenty of statistics in these briefs to show there are some people who do know and a lot of people end up dead. OK?” 

Justice Breyer cited a brief submitted by social scientists and public health researchers that provides data demonstrating that more restrictive gun laws prevent violent crime. 

“The social scientists’ brief makes clear that the leading empirical scientific evidence does demonstrate that laws like New York save lives, whereas states that have more permissive right to carry regimes suffer from increased rates of homicide and violent crime,” Samuel Levander, an attorney at Cleary Gottlieb Steen & Hamilton who represents the scientists in their brief, said in a phone call.

Justice Elena Kagan tried to nail down the complicated nature of expanding gun rights in a city like New York and asked the attorney representing New York State Rifle and Pistol Association, Paul Clement, if guns should be restricted on subways or at universities or sporting stadiums. Clement, an attorney with Kirkland & Ellis, avoided answering if guns should be allowed on subways but said at universities carrying a gun would be OK. He spoke in particular about New York University, which he recognized is not “much of a campus.” The private institution has property scattered about lower Manhattan with something of a symbolic quad in the iconic Washington Square Park.

To Perry Grossman, supervising attorney at the New York Civil Liberties Union who submitted an amicus brief in this case, NYU’s campus, sweeping up the streets and sidewalks in the West Village and Greenwich Village, is a good example because it demonstrates the unique environments that New York must contend with while creating gun laws.

“Justice Kagan really, really raises how difficult it is to come up with a regime that adequately ensures public safety in diverse environments,” Grossman said in a phone call. “And that's really what this case threatens to do. … The petitioners want to establish a constitutional right to public carry that is going to take a lot of those policy choices off the table, and I think Justice Kagan's question recognizes just how broad that is and how much that can endanger the ability to provide public safety in a diverse set of environments.” 

Both sides claimed history supported their argument for or against the law. Justice Sonia Sotomayor said the history indicated that there were not the same rights to carry concealed arms in public that there are to keep guns in one’s home. 

“It seems to me that I don't know how I get past all that history without you sort of making it up and saying there's a right to control states that has never been exercised in the entire history of the United States,” Sotomayor said. 

The case began when two New Yorkers — Robert Nash and Brandon Koch — applied for concealed-carry permits for self-defense but failed to satisfy the “proper cause” threshold under the law. The men mounted a challenge to this requirement with support from the New York State Rifle and Pistol Association. A federal judge dismissed the suit, however, and the case moved to the Supreme Court’s docket after the Second Circuit affirmed

Clement leaned on the text of the Second Amendment and the Heller precedent in his argument, asserting that gun rights are treated differently as compared with other constitutional rights. Clement did not respond to requests for comment. 

“New York likens its law to a restriction on weapons in sensitive places, but the difference between a sensitive-place law and New York's regime is fundamental,” Clement said. “It is the difference between regulating constitutionally protected activity and attempting to convert a fundamental constitutional right into a privilege that can only be enjoyed by those who can demonstrate to the satisfaction of a government official that they have an atypical need for the exercise of that right. That is not how constitutional rights work.”

Barbara Dale Underwood, solicitor general of New York, claimed New York’s law is supported by history and that the state is not an outlier in its regulation. Underwood did not respond to requests for comment. 

“New York's law fits well within that tradition of regulating public carry,” Underwood said. “It makes a carry license available to any person not just qualified, who has a nonspeculative reason to carry a handgun for self-defense. New York is not an outlier in the extent to which the state restricts the ability to carry firearms in public, and it's not an outlier in asking a license applicant to show good cause for a carry license.” 

Activists against gun violence expressed deep concern following the court’s arguments. Fred Guttenberg, whose 14-year-old daughter was killed in the massacre at Stoneman Douglas High School in Florida, said he was deeply concerned about how the court could rule on this case. 

“My daughter was a cost of doing business for the gun lobby and what it says to me is the gun lobby’s investment in this current version of the Supreme Court may well pay off,” Guttenberg said in a phone call.

Guttenberg said he was deeply frustrated with the justices’ focus on making it easier to get guns instead of on public safety. 

“We are a democratic republic, the first responsibility is the requirement to public safety, and it didn't exist in the questions that were asked and that is disturbing,” Guttenberg said. “I fear they're going to use some of their questions to bend the law that's been around for over 100 years, that the citizens of New York were fine with, for a guns-everywhere-all-the-time-for-anyone approach. That doesn't make us safer.” 

Among some gun-safety groups, however, there were voices still holding out hope that the conservative justices expressed enough hesitation not to totally do away with all regulations and keep some limits on publicly carrying guns. 

“Today’s argument made clear that even the court’s most conservative justices have hesitations about granting the gun lobby its ultimate goal in this case — the unrestricted right to carry guns in all public places, at all times,” Eric Tirschwell, executive director of Everytown Law, said in an email. “There are a number of ways the court could ultimately decide this case, and the details of their ruling matter.  As the justices heard today, this is ultimately about whether elected officials will continue to be able to make decisions about protecting their communities — including by limiting who can carry guns in football stadiums, university campuses and shopping malls.”

Richard Bernstein, an appellate lawyer and who filed an amicus brief in the case arguing that gun restrictions in the nation's capital prevented bloodshed on January 6, also found some of the justices' questions allowed for continued restrictions in certain circumstances. 

“The most important comments were those by the Chief Justice and Justice Barrett, suggesting that legislators can list places and situations where loaded handguns may not be carried such as busy streets, campuses, bars or restaurants, and stadiums,” Bernstein said in a phone call. “That approach is essential to protect the country and the Constitution against the world where the protesters and counter-protesters are armed at the next Stop the Steal or Black Lives Matter rally.” 

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