on Nov 3, 2021
at 1:43 pm
When Wednesday’s oral argument in New York State Rifle & Pistol Association v. Bruen drew to a close after roughly two hours of debate, it seemed likely that New York’s 108-year-old handgun-licensing law is in jeopardy. But the justices’ eventual ruling might be a narrow one focused on the New York law (and others like it), saving broader questions on the right to carry a gun outside the home for later.
The law requires anyone who wants a license to carry a concealed handgun to show “proper cause” for the license. Courts in New York have defined “proper cause” to require applicants to show a special need to defend themselves, rather than simply wanting to protect themselves or their property.
Representing the challengers in the case, a gun-rights advocacy group and two men whose applications for unrestricted concealed-carry licenses were denied, lawyer Paul Clement told the justices that the text of the Second Amendment enshrines a right to bear arms, and the history and tradition of the United States confirm that the text protects an individual right to carry a gun for self-defense. Carrying a gun outside the home is a fundamental right that people in 43 other states enjoy, Clement observed. And the point of a constitutional right, he stressed, is that you don’t have to satisfy a government official that you have a good reason to exercise it.
The court’s liberal justices pushed back on Clement’s assertion that the history of gun laws and gun rights supported his interpretation, and they questioned whether New York’s scheme was actually as stringent as Clement suggested. Justice Elena Kagan noted that Clement’s brief portrayed the New York scheme as one that denies most people the ability to carry a gun for self-defense. But, she posited, if statistics showed that the state actually grants many of the applications, the court might view the case differently. And at more than one point in the argument, the liberal justices advocated for additional proceedings in the lower court to develop more facts on how many permit applications the state has granted – a move that would, at least for now, stave off a ruling on the merits of the challengers’ claim.
To the extent that the conservative majority pressed Clement, it was largely on the limits of the relief that he was seeking, and in particular what a ruling in his clients’ favor might mean for “sensitive places” like courthouses, schools, and airports. Chief Justice John Roberts asked Clement whether restrictions could be placed on the concealed carry of handguns on university campuses, at football stadiums, or at places where alcohol is served.
Clement responded that a determination would have to be made on a case-by-case basis, considering factors such as whether a particular place is open to the public. That led to one of the lighter moments of the argument, when Kagan followed up with a question about the prospect of restrictions on concealed carry at New York University, telling Clement that “anyone can walk around a campus.”
“NYU,” Clement countered, “doesn’t have much of a campus.”
Justice Brett Kavanaugh stressed that the question before the court was, in his view, limited to the constitutionality of the New York permitting regime. “We don’t have to answer all of the ‘sensitive places’ questions,” he said to Clement.
Clement agreed, noting that although New York has restrictions on “sensitive places,” his clients had not challenged them.
And Kavanaugh seemed to suggest that the constitutionality of the permitting regime could be largely resolved based on the text of the Second Amendment – the right to “bear arms,” without needing to delve too deeply into the historical practice.
Barbara Underwood, the solicitor general of New York, told the justices that for centuries, English and American laws have imposed limits on the carrying of guns in public for the protection of public safety. New York’s law fits well within that tradition of regulating public carry, she argued. Brian Fletcher, the principal deputy solicitor general of the United States, argued in support of New York on behalf of the Biden administration, and he similarly emphasized the history of gun regulations. Fletcher listed various 19th-century state laws that he characterized as analogous to the New York law.
Several of the court’s conservative justices took issue with the state’s rationale for granting unrestricted licenses to carry handguns more often in less densely populated areas, on the ground that disputes are less likely to break out. Roberts was dubious, and he peppered Underwood with questions. The court’s ruling in District of Columbia v. Heller, he pointed out, relied on the right to self-defense. Wouldn’t, he asked, someone have a greater need for self-defense in a higher-density area?
When Underwood responded that New York wanted to protect the right to self-defense but also protect public safety, Roberts pushed back again. He said he can understand a regulation prohibiting guns in a football stadium, but the right to protect oneself would be greater in a high-crime area, he said. “How many muggings take place in the forest?” Roberts asked.
The justices also bridled at what they saw as the substantial discretion that New York gives to local officials to determine whether an applicant has shown “proper cause” to obtain a concealed carry license. Underwood acknowledged that the officials have discretion, but she stressed that the discretion is “not unguided.” Justice Samuel Alito appeared unconvinced, asking Underwood to explain how an applicant can ensure that an official does not consider improper factors in making his decision.
A decision in the case is expected by summer.
This article was originally published at Howe on the Court.