New Yorkers should get used to having a lot more guns on the street. That’s the takeaway from Wednesday’s oral arguments in the Supreme Court case of New York State Rifle & Pistol Association v. Bruen. The Court’s conservative majority appears ready to strike down New York’s policy of issuing “concealed carry” permits only to people who show that they need a gun for self-defense.
But it may not be the landmark case that gun advocates hoped. Several justices seemed inclined to issue a narrow holding striking down New York’s rules, rather than a broad one, which could invalidate gun-control laws around the country. What’s more, even the Court’s conservative justices agreed that, under the Second Amendment — which, the Court decided in a 2008 case, includes an individual right to gun ownership — handguns can still be banned in “sensitive places” (though they disagreed about what those might be), certain types of firearms could be banned entirely, and certain types of people (felons, the mentally ill) could be barred from possessing them.
Only the Court’s three remaining liberals seemed prepared to defend New York’s law, which requires that a person establish their need for a gun before receiving a permit, with a local official (usually a judge) making the final decision. That, as several justices pointed out, is not normally how constitutional rights work. To exercise, say, the right to free speech, you don’t have to prove you have a special reason to say something; the state has to prove it has a special reason for stopping you. Here, not only is the “right of the people to keep and bear arms” contingent on a special reason, but it’s also contingent on the discretion of local officials.
At oral argument, New York’s solicitor general, Barbara Underwood, disastrously fumbled a series of questions about this requirement. Justice Alito told a compelling hypothetical story about someone working late at night in Manhattan who commutes by bus or train, and then has to walk home alone in a high-crime neighborhood. But because their fears are only speculative, Justice Alito asked, “they don’t get a license?”
“If there’s nothing particular to them,” replied Underwood, “that’s right.”
The exchange highlighted the strictness of the New York system, and the way it limits the right that the Second Amendment has been held to bestow. On the other hand, the same hypothetical shows the terrifying consequences of the Court’s eventual decision, which will likely be announced in the spring: lots of legally concealed guns on the subway, in addition to the illegal ones. Because, Second Amendment.
That’s the main problem with the Bruen case. It’s based on a flawed foundation: the case from 2008, D.C. v. Heller. Before that case, most legal scholars believed that the Second Amendment only created a collective right. As the National Rifle Association famously omits from its literal, carved-in-stone version of the text, the amendment really says that “a well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Unless those first 13 words are just decoration, the Second Amendment right seems to be connected to militias, which, before the establishment of police forces and national guards, helped to keep the peace — and to put down slave rebellions, which appears to have been the real motivation for the amendment. And indeed, as New York and the Department of Justice showed in oral arguments, there were numerous examples of states (and colonies) banning individuals’ concealed carry of weapons entirely.
But thanks to decades of lobbying by gun manufacturers and the NRA, legal history was changed in 2008, and advocates of gun control now have to deal with it. Second Amendment rights exist, and with this conservative-dominated Court, they’re only going to expand.
There is plenty of irony — some would say hypocrisy — in this state of affairs.
First, the Heller case said that to establish the boundaries of a constitutional right, courts should look to “text, history, and tradition.” That’s generally a conservative principle, used to invalidate rights like same-sex marriage, the right to obtain an abortion, and so on.
Only, history is messy. During two hours of oral argument, the justices and lawyers offered competing examples from history of guns being regulated, guns being allowed, and everywhere in between. They debated whether ancient precedents (dating from 1350!) are essential or irrelevant. Everybody had points on their side. As Justice Sotomayor asked the attorney for the individuals challenging the law, the renowned Supreme Court litigator Paul Clement, “How do I get past all these various histories without you just making it up?”
But the alternative to “text, history, and tradition” is the Court balancing state and private interests, which is what constitutional law used to be about until so-called “originalism” became so dominant. Yes, there’s a right to bear arms, but no right is unfettered. So how much fettering is too much? Could New York ban guns on the subways, but not on the streets? Must the state treat New York City differently from Rensselaer County, where one of the challengers lived? These questions are precisely what originalism was meant to avoid, but ultimately, there was no getting around them.
There was even an extended debate, with audible laughter in the background, about whether New York University has a campus or not — and thus whether guns could be banned from there as well. (No word yet from NYU officials.)
Then there’s states’ rights. Normally, conservatives love states’ rights, which is why, over the last century, they’ve argued that states should be allowed to maintain segregation, ban abortion, stop people of color from voting, and criminalize being gay.
Here, however, despite the obvious fact that states have all sorts of reasons for balancing safety and liberty in different ways, conservatives seek to take some options “off the table,” in the words of Brian Fletcher, the deputy solicitor general, who argued the case for Justice Department. Fletcher acknowledged that, in the exchange with Underwood, “Justice Alito made a powerful argument for why a different regime might be preferable.” But, Fletcher said, “New York should be allowed to make the choice that it has made.”
It won’t be. Justices Thomas, Alito, Gorsuch, and Kavanaugh were clearly disposed to strike down the law, with Gorsuch and Kavanaugh inquiring mainly about how best to do it. Chief Justice Roberts tipped his hand as well, saying that “the Second Amendment is to be interpreted the same way as other provisions. You don’t have to say you have a special reason to exercise the right — [the state] has to say why you can’t.”
Even if Justice Barrett — who, interestingly, has equivocated about the scope of the Second Amendment in the past — parts company with her fellow conservatives, that’s five votes in favor of striking down the law. (Justice Breyer seemed inclined to remand the case for more factual findings, with Justices Sotomayor and Kagan inclined to affirm the law as consistent with America’s history of regulating gun possession.)
The question will be one of extent — and here there is, perhaps, some cause for liberals to hope. Justice Kavanaugh seemed content with a permitting regime where states “shall issue” permits rather than “may issue” them, removing the issue of discretion and the need for a showing of special circumstances. If Justice Barrett agrees with him, that would entail striking down New York’s law on a very narrow basis rather than a very broad one.
And that would be a setback rather than a disaster. Which, with this Court, counts as good news.