Current Events | How A Forthcoming Supreme Court Decision Could Trigger A New Era of Weakened Gun Laws

This past November, the U.S. Supreme Court heard oral arguments for New York State Rifle & Pistol Association v. Bruen, a case challenging a strict New York state gun law. This marks the first time the Court has taken up a major Second Amendment case in more than a decade. After two hours of questioning, a majority of justices seemed poised to strike down the law, which restricts citizens from carrying concealed handguns outside the home unless they prove a heightened or unique need, known as a “proper cause,” to do so. [1] Considering the Court’s recent 6-3 conservative supermajority, the justices will likely rule the New York law unconstitutional. In turn, the New York case could have lasting ramifications, endangering current restrictions on guns in public spaces such as bars, sports stadiums, and subways, and ushering in a new era of weakened gun control laws, increased litigation, and constitutional questions regarding where and when one can carry a gun in public.

The New York law in question was enacted in 1913 and stipulates that anyone applying to carry a concealed handgun in public must demonstrate “proper cause” in order to obtain a license. [2] These types of gun laws, known as “may issue” laws, have been similarly implemented in California and many East Coast states such as Massachusetts, New Jersey, and Maryland. [3] In the case of New York State Rifle & Pistol Association v. Bruen, the petitioners’ applications for unrestricted licenses were denied because their desire to possess guns for self-defense was “non-speculative” and therefore did not meet the “proper cause” threshold. [4] Among those meeting the threshold in New York were hunters, store owners wanting to protect valuables, and bank messengers carrying cash. [5] Despite the fact that forty-three U.S. states have gun laws less strict than New York’s or very few gun regulations, the Court’s ruling in this case would impact 80 million Americans—about a quarter of the population—many of whom live in high-density states such as California or populous cities such as Boston or New York. [6]

Oral arguments on November 3, 2021, exposed the unanswered legal questions regarding to what extent the Second Amendment to the U.S. Constitution protects an individual right to “keep and bear arms” outside the home. [7] Chief Justice John Roberts questioned why people are required to demonstrate a need to exercise the constitutional right to bear arms—a phenomenon that he described as “unusual in the context of the Bill of Rights.” He also seemed skeptical of New York Solicitor General Barbara Underwood’s argument that more permits were more “readily available” in rural areas instead of urban areas because there is less law enforcement. It is “paradoxical” to recognize Manhattan as a “high-crime area but [not] worry about it because there are a lot of police around,” he argued, asking “but how many muggings take place in the forest?”. [8]

Justices Brett Kavanaugh and Amy Coney Barrett, two of the former President Donald Trump’s three recently appointed conservative justices, seemed inclined to strike down the New York law but leave related constitutional questions open for later litigation. This includes the critical issue of determining in which “sensitive places” it would be permissible to restrict guns in public. In oral arguments, Justice Kavanaugh asked the petitioners to clarify that the justices “don’t have to answer all the sensitive places questions in this case, some of which will be challenging no doubt, is that accurate?”. The petitioners responded, “that is 100% accurate.” Indeed, oral arguments indicated that this issue is far from resolved. While Justice Barett suggested a “common sense” standard to determine what constituted a “sensitive place,” Justice Stephen Breyer issued a swift rejoinder: that the meaning of “sensitive place” can be contextual, and moreover, that even people of “good moral character” can become dangerous under certain circumstances. At a bar or when alcohol is combined with a rowdy sports game, for example, festivities can devolve into “gun-related chaos” and possibly “a lot of people end up dead.” [9]

The majority ruling for New York is highly anticipated because it is the first major gun case the Court has taken up since its 2008 landmark decision in District of Columbia v. Heller. The Heller decision established that the Second Amendment protects an individual right to bear arms for purposes such as self-defense within the home. [10] The ruling struck down a Washington, D.C. handgun ban. Reinforcing this precedent, the 2010 Supreme Court case McDonald v. Chicago established that the Heller ruling also applied to the 50 U.S. states, not solely in D.C., which is instead a federal jurisdiction. However, the Court made clear in its Heller decision that the “Second Amendment right is not unlimited.” The Court also recognized that laws restricting access to guns in “sensitive places” such as schools or government buildings, or for certain individuals, such as convicted felons or the mentally ill, have been historically acceptable. [11] What the Court did not address in Heller was the use of handguns outside the home for the purpose of self-defense. 

This is the very constitutional question that the plaintiffs in New York State Rifle & Pistol Association v. Bruen have brought before the Court. Petitioners Brandon Koch and Robert Nash had both applied for unrestricted concealed-carry handgun licenses to carry the guns outside for self-defense. While both applications were denied, Mr. Nash and Mr. Koch were granted restricted licenses to carry a handgun outside the home for hunting and target shooting. Mr. Koch’s restricted license also allowed him to carry his handgun to and from work. [12] Mr. Koch and Mr. Nash, joined by the National Rifle Association-affiliated New York State Rifle & Pistol Association, argue that the New York law violates an “individual right to keep and bear arms,” as outlined in Heller, and that this right extends beyond the home. [13]

Based on oral arguments, the majority of justices appear prepared to side with the plaintiffs and rule that the Second Amendment protects an individual right to carry a gun outside the home for self-defense. This would finally address the pressing constitutional question left in the wake of Heller—and yet leave unresolved the question of what constitutes a “sensitive place” where gun access can be restricted. [14] This constitutional ambiguity would open the door for a cascade of litigation regarding how, when, and where states can regulate guns outside the home, ushering in a new era of gun regulations. 

In densely-populated cities such as New York City, this ruling would blur the line between gun rights and public safety during a time of increased gun violence intensified by the COVID-19 pandemic. For example, there were 166% more shootings in New York City in April 2021 as compared to April 2020. [15] New York has not been the only city to suffer from an uptick in gun-related crime: across the United States, the rate of gun violence increased by 30% between March 2020 and March 2021 amidst the socioeconomic upheaval caused by the COVID-19 pandemic. In twenty-seven states and Washington, D.C., the risk of gun violence was classified as “significantly higher” than the year before. [16] As Justice Breyer pointed out in oral arguments, guns “are dangerous,” especially now. [17]

While New York will likely try to implement new forms of gun control after the probable overturning of its century-old gun law, in the meantime the Court’s decision could allow concealed guns to make their way into rowdy bars, sports stadiums, subways, and other crowded places. Thus, the New York case will likely lead to an expansion of Second Amendment rights beyond what is explicitly delineated in the text of the Constitution. This is precisely what former Supreme Court Justice John Paul Stevens warned of in his dissenting opinion in D.C. v. Heller. He argued that Heller’s recognition of an individual right to own and use guns “upsets” the “settled understanding” that a state can regulate civilian use of guns if it does not interfere with the “preservation of a well-regulated militia.” [18] “I fear that the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table,” Justice Stevens wrote, foreshadowing the fraught legal issues brought before the court in the New York case. [19] More than a decade later, his prediction will likely come true. 

Edited by Mrinalini Sisodia Wadhwa

Sources:

[1] Jonah E. Bromwich and Ashley Southall, “What Happens if the Supreme Court Strikes Down New York’s Gun Law?” New York Times (November 5, 2021), online at https://www.nytimes.com/2021/11/05/nyregion/supreme-court-new-york-gun-control-law.html (Visited December 1, 2021)

[2] In 1911, New York enacted its “Sullivan Law,” a wide-ranging gun control law named for the state senator Timothy Sullivan, who sponsored the bill. Provisions were added regarding standards for granting conceal carry permits in 1913. See Mark Walsh, “Supreme Court revisits Second Amendment with challenge to New York concealed-gun restrictions,” The American Bar Association Journal (October 28, 2021), online at https://www.abajournal.com/web/article/supreme-court-revisits-second-amendment-with-challenge-to-ny-concealed-gun-restrictions (Visited January 4, 2022).

[3] Jessica Gresko, “High court seems ready to strike down New York gun law,” AP News (November 3, 2021), online at https://apnews.com/article/us-supreme-court-new-york-los-angeles-gun-politics-d7481cb9fd55626abec33e50f1b1a639 (visited December 1, 2021). Note that “may issue” laws allow for state discretion when issuing conceal carry permits, while “shall issue” laws stipulate that authorities must grant conceal carry licenses to anyone who meets basic legal requirements. See “Easing Restrictions on Gun Permits,” The New York Times (December 26, 2011) https://archive.nytimes.com/www.nytimes.com/interactive/2011/12/27/us/easing-restrictions-on-gun-permits.html?action=click&module=RelatedCoverage&pgtype=Article&region=Footer (Visited January 4, 2022).

[4] Letitia James et al., State of New York Br. in Opp., legal brief no. 20-843, 1, February 2021, online at https://www.supremecourt.gov/DocketPDF/20/20-843/169604/20210222170827872_20-843_Brief%20in%20Opposition.pdf (Visited January 4, 2022). 

[6] Gresko, “High court seems”; Krishnadev Calamur and Nina Totenberg, “Supreme Court appears skeptical of New York’s restrictive gun control law,” NPR News (November 3, 2021), online at https://www.npr.org/2021/11/03/1051988277/supreme-court-appears-skeptical-of-new-yorks-restrictive-gun-control-law (visited December 1, 2021).

[7] U.S. Const. amend. II., online at https://constitutionus.com/ (Visited January 3, 2022).

[8] New York State Rifle and Pistol Association, Inc. v. Bruen oral argument transcript. SupremeCourt.gov (November 3, 2021), online at https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-843_8n5a.pdf  (visited December 1, 2021).

[10] Adam Liptak, Justices’ Questions Suggest New York Gun Control Law is Unlikely to Survive, The New York Times, (November 3, 2021) online at https://www.nytimes.com/2021/11/03/us/politics/supreme-court-guns-second-amendment.html (Visited December 1, 2021).

[11] District of Columbia v. Heller, 554 U.S.___ (2008)

[12] Bromwich and Southall, “What Happens if.”

[13] Anne E. Marimow, Tom Jackman and Mariana Alfaro, “Supreme Court debates balance between public safety, self-defense in N.Y. gun rights case,” The Washington Post (November 3, 2021) online at https://www.washingtonpost.com/national-security/2021/11/03/supreme-court-gun-rights-live-updates/ (visited December 29, 2021).

[14] Gresko, “High court seems.”

[15] Stephen M. Lepore, “NYPD: Shootings up 166%, fueling NYC crime surge,” News10/Fox23 Local New York News (May 21, 2021), online at https://www.news10.com/news/ny-news/nypd-shootings-up-166-fueling-nyc-crime-surge/ (visited December 29, 2021). 

[16] Robert Hart, “Gun Violence Soared In 27 States During The Covid-19 Pandemic — It Went Down In Just One,”Forbes (October 21, 2021), https://www.forbes.com/sites/roberthart/2021/10/21/gun-violence-soared-in-27-states-during-the-covid-19-pandemic---it-went-down-in-just-one/?sh=4e4923007a64, (visited December 1, 2021).

[17] New York State Rifle and Pistol Association, Inc. v. Bruen oral argument transcript. 

[18] District of Columbia v. Heller, 554 U.S.___ (2008).

[19] Ibid.