The Supreme Court’s conservative majority seemed skeptical Wednesday of New York’s restrictions on carrying concealed guns outside the home as they considered the most significant Second Amendment case in more than a decade.
The case, New York Rifle & Pistol Association v. Bruen, could have a major impact on state rules for carrying firearms outside the home. Gun-rights proponents hope the court will reverse a lower court’s ruling upholding a century-old New York law that limits who can receive licenses to carry concealed handguns in public. At least seven other states have similar concealed-carry restrictions.
Chief Justice John Roberts grilled New York Solicitor General Barbara Underwood, who was arguing in defense of the law, about who was more likely to be granted a concealed-carry license in the state.
After Underwood said that such licenses are much more readily available in lower-density parts of the state versus the sardine-packed metropolitan areas, Roberts asked how that aligns with court precedent that the Second Amendment’s core purpose is for self defense.
“How many muggings take place in the forest?” he asked.
“I take your point that there is a different risk in the city, but there is also a different public safety consideration,” Underwood responded.
Some of the court’s conservatives appeared more clearly sympathetic to a broad application of the Second Amendment in the case.
“All these people with illegal guns [in the city], they’re on the subway, they’re walking around the streets,” said Justice Samuel Alito, “but the ordinary, hard-working, law-abiding people I mentioned — no, they can’t be armed.”
For people applying for a concealed-carry license, “Why isn’t it good enough to say, ‘I live in a violent area and I want to defend myself’?” Justice Brett Kavanaugh asked. If the ability to carry a gun in public is up to the discretion of a licensing officer, “that seems inconsistent with an objective constitutional right,” he added.
But some of the court’s conservatives also needled Paul Clement, the attorney for the gun-rights group and two its members, about where the government can place limits on carrying firearms in public without running afoul of the Constitution.
“What sort of place do you think they could be excluded from?” Roberts asked, raising examples such as bars, university campuses or football stadiums. Clement suggested these situations should be considered on a case-by-case basis.
“I guess it’s about the level of generality,” Justice Amy Coney Barrett, the newest member of the court and the third conservative appointee of former President Donald Trump, said during Clement’s arguments. She asked about whether concealed guns could be barred from Times Square on New Year’s Eve.
“At the end of the day, I think what it means to give somebody a constitutional right is that they don’t have to satisfy a government official that they have a really good need to exercise it,” Clement argued.
Justice Stephen Breyer, one of the three liberals on the court, expressed concern about relaxed gun laws affecting crime. “What are we supposed to say, in your opinion, that is going to be clear enough that we will not produce a kind of gun-related chaos?” Breyer asked Clement.
Breyer posed that question against the backdrop of a rise in gun violence across the country during the coronavirus pandemic.
The question before the court on Wednesday was whether New York violated the Second Amendment when it denied state residents’ concealed-carry applications because they lacked a “proper cause.”
The case was brought by the New York State Rifle & Pistol Association and two of its members, Robert Nash and Brandon Koch, whose applications for concealed-carry handgun licenses for self-defense purposes had been rejected.
New York Supreme Court Justice Richard McNally, who handled both requests, ruled that neither of them showed proper cause to carry guns in public because they failed to show a special need for self protection.
The plaintiffs argued that the state law governing concealed-carry licenses, which permits them only when “proper cause exists for the issuance thereof,” violates the Constitution.
A federal court in New York dismissed the case, and the 2nd Circuit Court of Appeals affirmed that judgment.
In their case heard Wednesday, the New York gun group argued that the language of the Second Amendment — securing “the right of the people to keep and bear Arms” — refers to two separate rights. To “keep” arms is to be able to own them, while to “bear” arms is to be able to carry them, they argued.
The most recent major Supreme Court decision on guns came more than a decade earlier in District of Columbia v. Heller, when the court held in a 5-4 ruling that the Second Amendment protects the individual right to carry a gun for self-defense inside the home.
Roberts said Heller’s precedent would be the “first thing” he would look to when considering this case. “We, I think, generally don’t reinvent the wheel,” he said.