More than a decade after its last major decision on gun rights, the Supreme Court on Wednesday grappled with whether restrictions on the right to carry a firearm in public for self-defense pass constitutional muster, with the conservative justices sounding skeptical of the breadth of a New York rule that limits those who can.
Across nearly two hours of oral arguments in a dispute challenging the New York law, which has been on the books for more than a century, two members of the court's conservative wing — Chief Justice John Roberts and Justice Brett Kavanaugh — raised concerns with the discretion the regime grants to local licensing officers in deciding whether to approve applications from New Yorkers seeking to carry their firearms in public for self-defense.
"That's the real concern, isn't it, with any constitutional right?" Kavanaugh told Barbara Underwood, New York's solicitor general. "If it's the discretion of an individual officer, that seems inconsistent with an objective constitutional right."
The chief justice said the Second Amendment should be interpreted in the same manner as other constitutional rights, and questioned why, under New York's rules, one has to assert a special need to bear arms in public.
"You can say that the right is limited in a particular way, just as First Amendment rights are limited, but the idea that you would need a license to exercise that right I think is unusual in the context of the Bill of Rights," Roberts told acting Solicitor General Brian Fletcher, who argued on behalf of the Biden administration, which supports New York in the case.
While a majority of the court seemed inclined to strike down the New York law, the justices suggested there could be limits to the right to carry firearms in public for self-defense, specifically when it comes to "sensitive places" or heavily populated areas.
Roberts questioned whether a state or city can ban firearms on university campuses, in football stadiums or places where alcohol is served, while Justice Amy Coney Barrett asked whether Times Square on New Year's Eve could be subject to limitations on the right to carry in public.
Under New York's concealed carry framework, which dates back to 1913, residents seeking a license to carry a firearm outside the home must demonstrate a "proper cause" to obtain one, which state courts have said is a "special need for self-protection."
Robert Nash and Brandon Koch, the two plaintiffs in the case known as New York State Rifle and Pistol Association v. Bruen, applied for carry licenses, but licensing officers denied their applications because they failed to establish proper cause to carry handguns outside the home. The two were, however, granted "restricted" licenses to carry handguns for target shooting, hunting and outdoor activities.
Nash and Koch, with the New York State Rifle and Pistol Association, filed a lawsuit in 2018 challenging the constitutionality of New York's ban on carrying handguns outside the home and the proper-cause requirement. But a federal district court in New York dismissed their case, and the 2nd Circuit Court of Appeals affirmed the lower court's decision, leaving the state's rule in place and teeing up the showdown before the Supreme Court.
The case is the most significant involving the right to bear arms since the Supreme Court in 2008 ruled the Second Amendment protects the right to have a handgun in the home for self-defense, and in 2010 said the right applies to the states. In the years since those decisions, the high court has spurned numerous other legal battles over state gun regulations, to the displeasure of some of its conservative members, namely Justice Clarence Thomas.
But now with a 6-3 conservative majority, gun rights groups hope the court's ideological composition makes it more open to lifting government limits on carrying guns in public.
Underwood told the justices that at least 20 states have throughout history prohibited the carrying of all handguns in populous areas or limited public carry to those with "good cause" to carry a concealed firearm. In New York, unrestricted licenses are more readily available in less densely populated counties, she said.
Justice Clarence Thomas said implicit in Underwood's argument is that a strict rule governing carrying handguns outside the home is less necessary in more rural areas. But he noted that Nash and Koch resided in Rensselaer County, an area of New York's capital region that includes rural communities and the midsize city of Troy.
"It's one thing to talk about Manhattan or NYU's campus," he said. "It's another to talk about rural, upstate New York."
Roberts noted the Supreme Court's 2008 decision relied on the right to self-defense, which he said arises in more populated areas, while Underwood suggested "that's probably the last place that someone's going to get a permit to carry a gun."
"If the purpose of the Second Amendment is to allow people to protect themselves, that's implicated when you're in a high-crime area. It's not implicated when you're out in the woods," he said. "How many muggings take place in the forest?"
Justice Samuel Alito, too, suggested the need to carry a gun in public would be greater for a law-abiding person in Manhattan who works late and is required to commute home through high-crime areas.
Underwood told Alito in that instance, someone applying for a license to carry a handgun would likely be denied, as they have not demonstrated a need specific to them.
"How is that consistent with the core right to self-defenses, which is protected by the Second Amendment?" he said. "It doesn't mean that there is the right to self-defense for celebrities and state judges and retired police officers, but pretty much not for the kind of ordinary people who have a real felt need to carry a gun to protect themselves."
Like New York, six other states — California, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island — allow a person to carry a firearm in public only if they have a need to do so. But New York officials warned that if the Supreme Court invalidates its rule, that decision could have a domino effect, jeopardizing not only those other states' laws, but others that restrict public carry in places where people congregate, like airports, arenas, churches and schools.
Forty-one states, meanwhile, are considered "shall issue" jurisdictions, in which an applicant seeking a concealed carry license must meet a basic set of requirements under state law to receive one.
Asked about the pitfalls of these shall-issue regimes, Underwood said they "multiply the number of firearms that are being carried in very densely populated places and there is a much higher risk — without assuming any ill-intent on the part of the carriers of weapons — they greatly proliferate the likelihood that mistakes will be made, fights will break out."
But Kavanaugh said he has not seen "real evidence" that these less stringent rules lead to a spike in gun crimes.
"Before you impose more restrictions on individual citizens and infringe their constitutional right based on this theory, you should have to show, well, in those other states that have shall-issue regimes, actually there's more accidents, crime," he said.
The New York gun owners, represented by Paul Clement, who served as solicitor general under former President George W. Bush, have accused New York of making it "all but impossible" for law-abiding citizens to exercise their Second Amendment right.
The state's carry regime, Clement told the court in a brief, "is upside down" and "effectively criminalizes the exercise of a fundamental constitutional right."
The Second Amendment dispute attracted a slew of friend-of-the-court briefs, ranging from gun rights organizations, to academics parsing the history of public carry and self-defense principles, to members of Congress and civil rights groups.
The Supreme Court agreed to jump into the dispute over public carry in April and said it would consider the question of whether New York's denial of the applications for concealed-carry licenses for self-defense violated the Second Amendment.
Their decision to review the 2nd Circuit's decision came after a spate of mass shootings, which reignited the debate over gun control and sparked calls for Congress to pass more stringent gun laws. But legislative actions went nowhere, even as gun violence spiked during the COVID-19 pandemic.
A ruling from the Supreme Court is expected by summer 2022.