The Supreme Court seemed receptive to arguments that New York state’s tough concealed-carry gun permitting system violates the Second Amendment during a court hearing on Nov. 3.
The legal challenge is important because it could result in a nationwide recognition of the right of Americans to possess guns outside the home and carry guns in public places such as parks, schools, shopping malls, and churches.
The Supreme Court has been strengthening Second Amendment protections in recent years and observers say the court’s 6–3 conservative supermajority could help expand gun ownership protections.
In District of Columbia v. Heller (2008), the Supreme Court held that the Second Amendment protects “the individual right to possess and carry weapons in case of confrontation,” and in McDonald v. City of Chicago (2010), it held that this right “is fully applicable to the States.”
It comes amid rising crime rates, activist demands to defund police departments, and a Biden administration push to strengthen gun control policies.
New York state’s gun permit law, like laws in seven other states, generally requires an applicant to prove “proper cause” in order to obtain a license to carry a concealed handgun in public.
The specific issue before the court is whether the state’s denial of the petitioning individuals’ applications for concealed-carry licenses for self-defense violates the Second Amendment.
Arguments ran 48 minutes overtime, perhaps reflecting the importance of the constitutional rights under discussion. Sick at home, Justice Neil Gorsuch participated by telephone.
Representing petitioners at the hearing Nov. 3 was Paul Clement, U.S. solicitor general in the second term of then-President George W. Bush.
Clement said the Constitution is on his clients’ side.
“The text of the Second Amendment enshrines a right not just to keep arms but to bear them, and the relevant history and tradition, exhaustively surveyed by this court in the Heller decision, confirmed that the text protects an individual right to carry firearms outside the home for purposes of self-defense,” he said.
That history “is so clear that New York no longer contests that carrying a handgun outside of the home for purposes of self-defense is constitutionally protected activity,” Clement said. “But that concession dooms New York’s law which makes it a crime for a typical law-abiding New Yorker to exercise that constitutional right.”
New York Solicitor General Barbara Underwood confirmed to Justice Amy Coney Barrett that she was “quite content” to say the Heller case “was rightly decided.”
Clement said New York likens its law to laws restricting weapons in sensitive places, “but the difference between a sensitive-place law and New York’s regime is fundamental.”
“It is the difference between regulating constitutionally protected activity and attempting to convert a fundamental constitutional right to 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. Carrying a firearm outside of the home is a fundamental constitutional right. It is not some extraordinary action that requires an extraordinary demonstration of need. Petitioners here seek nothing more than [what] their fellow citizens in 43 other states already enjoy.”
Justice Sonia Sotomayor suggested Clement oversimplified the history of concealed-carry restrictions.
Most of those 43 states “didn’t give unrestricted rights to carry in one form or another until recent times. ... I don’t know how I get past all that history you are, sort of, making it up.”
Later in the hearing, Underwood said limits on carrying firearms in public go back 700 years, to “the 14th-century statute of Northampton, which prohibited carrying arms in fairs and markets and other public gathering places, to similar laws adopted by half of the American colonies and states in the founding period, to later state laws that relaxed restrictions for people who had a concrete need for armed self-defense.”
Justices Samuel Alito and Brett Kavanaugh zeroed in on the seeming bureaucratic arbitrariness in New York’s granting of concealed-carry licenses.
If someone works late at night in high-crime Manhattan, why shouldn’t that person be able to get a concealed-carry permit, Alito asked Underwood.
Being in a crime-ridden area doesn’t justify the issuance of a permit, Underwood replied.
“The core right to self-defense ... doesn’t allow for all ... to be armed for all possible confrontations in all places.”
Alito agreed, but asked, “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?”
“Proliferating guns in a populated area where there is law enforcement jeopardizes law enforcement,” she added.
“Why isn’t it good enough to say, ‘I live in a violent area and want to be able to defend myself'?” Kavanaugh asked.
Having plenty of concealed guns increases the chance of problems such as fights breaking out, Underwood said.
“With any constitutional right, if it’s [left to] the discretion of an individual officer, that seems inconsistent with an objective constitutional right,” Kavanaugh said.
Alito pointed out that in Underwood’s brief, it states that in founding-era America, legal reference guides told local officials to “arrest all such persons as in your sight shall ride or go armed.”
Alito said he looked up the cited guide from 1814, “A Manual of the Laws of North Carolina,” by John Haywood, “and what it actually says is ‘you shall arrest all such persons as in your sight shall ride or go armed offensively.”
“Somehow, that word ‘offensively’ got dropped from your brief,” he said.
“If any possession of weapons outside the home was illegal, then there would be no need to put in the term ‘offensively,’” Alito said.
