On November 3, the Supreme Court took up a blockbuster Second Amendment case. The case is known as New York State Rifle & Pistol Association v. Bruen. It could easily be the defining firearms case of this generation. At the heart of the case was whether states have the right to restrict individuals from carrying concealed handguns outside the home for self-defense. Was it a win for the Second Amendment or gun control groups? Read on and we will break it down.
It is important to note, that a Supreme Court hearing is not like a TV show. Questions are often delivered in the form of comment. There is not a single line of questioning from a single lawyer. Court watchers try to look between the lines or read the tea leaves. In truth, we will not know how the court will rule until next Spring.
Reports from court watchers seemed positive, with most believing the questions from the Justices during oral arguments showed strong skepticism against New York’s laws and 110-year practice of restricting people from carrying concealed handguns outside the home. Of course, the court watchers I am mentioning are all pro Second Amendment, so…
The Case and the Court
It’s been more than a decade since the Supreme Court has handed down a ruling on a major Second Amendment case. The difference? Today, due to the efforts of President Trump and the previous congress, the High Court is believed to be much more conservative-leaning, and by most accounts, friendlier to the pro Second Amendment cause.
That does not mean the High Court will automatically hand down a pro 2A decision. However, the court does have the opportunity to reexamine the scope and expand the right to keep and bear arms beyond the 2008 Heller decision.
Paul Clement argued on behalf of the people and gun rights groups challenging the New York regulations. New York Solicitor General Barbara Underwood (Boo-hiss) stood for the State of New York’s position.
Also, arguing in favor of the gun control measure was Principal Deputy Solicitor General Brian H. Fletcher. Fletcher argued that for centuries the New York lawmakers have protected the public by passing ‘reasonable’ regulations as opposed to the contention that it has stripped the individual’s right to self-defense, unreasonably.
Precedent or history plays a major role in most court decisions and today’s hearing was no different. The “liberal-leaning” justices questioned whether New York’s laws — seven other states have similar laws — were ahistorical (lacking historical perspective or context). This was primarily aimed at determining whether Clement’s arguments could withstand the pressure of an examination of the historical record. For example, certain states have lax gun laws today, but had strict and prohibitive laws at times in their histories.
“It seems to me that I don’t know how I can pass through all that history — well, without you, sort of making it up — and saying there’s a right to control states that has never been exercised in the entire history of the United States — as to how far they can go and say, this poses a danger,” Justice Sonia Sotomayor said.
Clement sought to compare his client’s restriction from obtaining concealed carry permits to obtaining a hunting license.
“One way to think about it is we’re asking that the regime work the same way for self-defense as it does for hunting,” Clement said.
“When my clients go in and ask for a license to carry a concealed weapon for hunting purposes, what they have to tell the state is they have an intent to go hunting. They don’t have to say, ‘I have a really good reason to go hunting.’ They don’t have to say, ‘I have a better reason to go hunting than anybody else in my general community.’”
“And the difference of course, you have a concealed weapon to go hunting, you’re out with an intent to shoot say a deer or rabbit which has its problems.” But when you’re carrying for self-defense, “you want to carry a concealed weapon,” he added.
Restrictions and Sensitive Areas
Remember, it was the late Justice Antonin Scalia who wrote the majority opinion in Heller declaring that the “central component” of the Second Amendment was not a “well-regulated Militia” but rather “the inherent right of self-defense.” Scalia also wrote:
“The right secured by the Second Amendment is not unlimited” and is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…”~Justice Antonin Scalia
Scalia championed the Second Amendment, but also cautioned that the right to carry a concealed handgun could be limited in places such as schools and courtrooms.
Chief Justice John Roberts touched on this point by asking Clement about restrictions on public carry in places that serve alcohol or venues such as football stadiums.
Justice Elena Kagan piled on with questions about prohibitions in New York subways and college campuses in the city. Even Justice Amy Coney Barrett joined the chorus when she asked about prohibitions on guns in Times Square on New Year’s Eve.
“If you concede, as I think the historical record requires you to, that states did outlaw guns in sensitive places, can’t we just say Times Square on New Year’s Eve is a sensitive place, because now we’ve seen you know, people are on top of each other?” Barrett said. “We’ve had experience with violence. So, we’re making a judgment it’s a sensitive place.”
Decisions, Decisions… How to Decide
Justice Stephen Breyer noted that the New York law requires applicants to have “good moral character” but that circumstances in society can change around them. Basically, Justice Breyer was saying a person could start out good, but due to the circumstances or alcohol or some other factor, lose that “good moral standing” — even if only temporarily.
If you have ever watched or listened to a Supreme Court hearing, you may have noticed a peculiar line of questioning from the justices to the lawyers asking for an argument on how the court should rule. This was the case when Justice Neil Gorsuch asked Clement questions that got at how sweeping the court’s ruling could be.
Gorsuch prompted Clement to elaborate on the use of balancing tests — opposed to historical analysis and examinations of tradition and text — in reviewing public carry cases.
The question allowed Clement to argue that history, tradition, and text should be the analysis lower courts use in any case concerning carrying a firearm for self-defense outside of the home. Clement also argued that if the court were to instead use a balancing test, that it would use a “strict scrutiny” test, which would set the bar very high for a state’s regulation to be upheld.
New York Solicitor General Barbara Underwood began with a simple claim that “New York is not an outlier in the extent to which the state restricts the ability to carry firearms in public.”
The justices took issue with New York’s seemingly unequal treatment of individuals in rural versus urban areas. Justice Clarence Thomas noted that one of the individuals who had brought the challenge had done so specifically because he was denied an unrestricted license to carry although he lived in a rural area. Chief Justice John Roberts also took issue with this point questioning whether the rural vs. urban framework made sense. He told Underwood that the need for self-defense may be greater in an urban area than in a rural one.
Underwood acknowledged that the risk may be different in a city than in a rural area, but countered that the consideration of public safety may be different as well.
Justice Thomas added, “It’s one thing to talk about Manhattan or an NYU campus. It’s another to talk about rural upstate New York.”
Alito and Kavanaugh — How Does the State Know Whether Someone Is in Danger?
Justices Samuel Alito and Brett Kavanaugh seemed to argue from a position of empathy for the right to self-defense. Grilling New York Solicitor General Underwood, the justices challenged whether it was appropriate for New York to second guess the applicant’s claim of a “need” to carry a firearm for self-defense.
Justice Alito used the example of janitors or nurses who work late hours and might want to carry a firearm for self-protection. There’s a substantial number of people carrying illegal guns in the city, Alito said, “But the ordinary, hard-working, law-abiding people I mentioned… no, they can’t be armed.”
Kavanaugh continued by asking Underwood, “Why isn’t it good enough to say, ‘I live in a violent area, and I want to be able to defend myself?’”
The line of questioning set Underwood back on her heels — unstable footing at a minimum. Pivoting like a skilled politician, Underwood attempted to deflect the justices’ questions by arguing that this case had not been framed around those issues. Underwood challenged, that if that was the concern, the matter should be remanded back to the lower courts for consideration.
Barrett to Underwood: Was Heller Correctly Decided?
Justice Barrett put Underwood in an unenviable position when she asked the solicitor general whether the case of the District of Columbia v. Heller — which affirmed an individual’s private right to keep guns in their home — was rightly decided.
Uncomfortable and unwilling to undermine her own position through additional questions or debate, Underwood gave as little ground as possible by admitting she was “quite content” to treat the decision as having been rightly decided.
Justice Barrett seized on the crack she had opened in the solicitor’s defense and asked whether the court could then depart from the interpretation of history laid out in Heller.
In truth, the conclusion is that we do not know much more than we did before the case started. The arguments went on for about two hours, although it was slated for less than an hour. That shows the weight the matter carries with the justices.
Arguments closed with Clement railing on the potential for unequal application of the law due to the “discretion” the New York law doles out to officials to determine whether guns can be carried by individuals based on a perceived need. This fact was certainly not lost on Justice Kavanaugh.
Clement pointed out, the courts had determined that “discretion” had harmed individuals due to its unequal application and prevented individuals from exercising their constitutional Second Amendment rights or face punishment if they did.
Discretion “has a real-world cost,” Clement concluded.