Can New Yorkers Carry Guns in Public Just Because They Want To? The Supreme Court Will Decide.
On Monday, April 26, the United States Supreme Court agreed to review a New York law that strictly limits carrying guns outside the home. This will be the first major Second Amendment ruling the court has made in ten years, and it will be the first to be decided with the new conservative balance of justices. The court has previously declined to review cases about similar laws in Maryland, Massachusetts and other states.
The law in question says that anyone applying for a license to carry a concealed weapon must show “a special need for self protection distinguishable from that of the general community or of persons engaged in the same profession.”
People in favor of gun control are concerned that the conservative justices could change the standard for gun control and put existing state policies in danger. They’re worried about undermining legislation like “red flag” laws that target the firearms of people the courts have found dangerous and expanded criminal background checks for gun buyers.
The Supreme Court has denied many Second Amendment appeals since its decision in District of Columbia v. Heller in 2008. That decision enabled individuals to keep guns at home for self-defense but did not speak to the issue of carrying guns in public.
Lower courts have usually upheld gun control laws since that 2008 decision. But there’s a divide on the question this new case poses: can states stop law-abiding citizens from carrying guns for self-defense in public if they don’t satisfy authorities that they are carrying with good reason?
The case SCOTUS will hear was brought by two men who were denied licenses to carry guns outside their homes. They, along with the New York State Rifle & Pistol Association (NYSRPA), filed a lawsuit claiming “the state makes it virtually impossible for the ordinary law-abiding citizen to obtain a license.” As the law currently stands, in New York, people who apply for a license to carry a gun outside their homes must show “proper cause.”
The question the Supreme Court will address is “whether the state’s denial of petitioner’s applications for concealed-carry licenses for self-defense violated the Second Amendment.”
The National Rifle Association’s Institute for Legislative Action’s executive director, Jason Ouimet, said, “We’re confident that the court will tell New York and other states that our Second Amendment right to defend ourselves is fundamental and doesn’t vanish when we leave our homes.” He called the issue under discussion “one of the most critical Second Amendment issues.”
In its brief, the NYSRPA wrote, “the text, history, and tradition of the Second Amendment and this Court’s binding precedents compel the conclusion that the Second Amendment does indeed secure that right.”
On the other hand, “The New York law is over a century old. It has been the basis for gun laws in cities across the country,” said Michael Waldman, author of “The Second Amendment: A Biography.” “Among other things, if the justices really are going to be guided by history and tradition, this law should stand.”
Hannah Shearer, litigation director at the Giffords Law Center, said, “Over the past month, Americans have reckoned with a never-ending series of shootings in public places, including shootings by law enforcement. The Supreme Court’s willingness to take up this case is a reckless response to our nation’s grief and could take us in the completely wrong direction.”
A spokesman for the Everytown for Gun Safety Support Fund, Eric Tirschwell, pointed out the increase in gun violence during the pandemic. He said, “A ruling that opened the door to weakening our gun laws could make it even harder for cities and states to grapple with this public health crisis. Fortunately, the courts have repeatedly backed states’ authority to pass public safety laws, and while the Supreme Court’s makeup has changed, the Constitution has not.”
New York Attorney General Letitia James said, “We will vigorously defend any challenge to New York state’s gun laws that are intended to protect public safety.” She also said her office will work to show that the state’s law is in alignment with the Second Amendment.
Democratic Gov. Andrew M. Cuomo’s stance? “The streets of New York are not the OK Corral and the N.R.A.’s dream of a society where everyone is terrified of each other and armed to the teeth is abhorrent to our values.” He said the state would fight the case, noting that NYSRPA is affiliated with the N.R.A. “New York’s nation-leading gun violence prevention laws . . . have made us the safest big state in the nation,” he said, adding that this lawsuit is a “massive threat to that security.”
The President called U.S. gun violence a “national embarrassment” after the April 15 shooting in Indianapolis when a gunman entered a FedEx facility and killed eight people and then himself. Biden, always a proponent for gun control, is working to tighten relevant laws.
President Biden announced this month that he plans to crack down on ghost guns. He gave the Justice Department a month to issue a regulation requiring that the components in the kits have serial numbers, the weapons created from the kits be legally classified as firearms, and requiring that buyers would undergo background checks.
Biden recently nominated David Chipman, who supports tighter gun rules, to lead the Bureau of Alcohol, Tobacco, Firearms and Explosives. There has been no permanent director in that department since 2015.
The President categorized his recent actions as the first steps in addressing gun violence. Another measure he has taken was to ask Congress to ban assault weapons and close background check loopholes.
Federal appeals courts have generally rejected challenges like the one in New York, and other lower courts have likewise been more aligned with those trying to control gun violence. For example, the San Francisco U.S. Court of Appeals for the Ninth Circuit upheld Hawaii’s similar law by a 7-4 vote.
Judge J. S. Bybee, a GHW Bush appointee, wrote the opinion for the majority in that case. He wrote, “Our review of more than 700 years of English and American legal history reveals a strong theme: Government has the power to regulate arms in the public square.”
Conversely, in Chicago, the federal appeals court struck down an Illinois law that banned the public carrying of guns. And in Washington, D.C., the federal appeals court struck down a law it said was “a total ban on most D.C. residents’ right to carry a gun.”
New York’s solicitor general, Barbara D. Underwood, urged the Supreme Court not to hear the case, arguing that unlike the more restrictive Illinois and D.C. laws, the New York law required people applying for licenses to give an “actual and articulable” reason for needing to carry a gun.
Justice Clarence Thomas, together with Justice Gorsuch, wrote in 2017 of “a distressing trend: the treatment of the Second Amendment as a disfavored right.” He said, “The right to keep and bear arms is apparently this Court’s constitutional orphan,” in one dissent. He further wrote, “For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense.”
The Supreme Court turned down about ten appeals in Second Amendment cases last June. It takes only four votes to grant a review. Perhaps the conservative justices weren’t sure then that they could get Chief Justice John G. Roberts Jr.’s vote. With the current court’s 6-3 conservative majority, things are different now.
The justices will hear the case during the term beginning in October. A ruling will be due in June 2022.
