fb-pixel Skip to main content

Majority of Supreme Court appears to think NY gun law is too restrictive

The US Supreme Court is seen through a metal barricade on Capitol Hill in Washington on Nov. 3, 2021.Jose Luis Magana/Associated Press

A majority of Supreme Court justices indicated Wednesday that they believe Americans generally have a right to carry a handgun outside the home for self-defense and that a New York law requiring special justification for getting such a permit is too restrictive.

But it was unclear from a two-hour argument in the case how much more the court was willing to do to clarify the Second Amendment. Several expressed concern about allowing those with concealed weapons in sensitive areas, such as stadiums, crowded public events, or places where alcohol is served.

The court’s six conservative justices expressed varying levels of support for the two individuals and the National Rifle Association affiliate challenging New York’s requirement, enacted more than a century ago, that says those who want to carry a concealed weapon for self-defense show a “special need for self-protection distinguishable from that of the general community.”

Advertisement



Chief Justice John Roberts, the conservative member of the court thought least eager to want to weigh in on state and local gun control measures, nonetheless said New York’s law seemed at odds with a constitutional right.

“The idea that you need a license to exercise the right, I think is unusual in the context of the Bill of Rights,” Roberts said.

Justice Brett Kavanaugh was more direct: “Why isn’t it good enough to say I live in a violent area, and I want to be able to defend myself?”

The Supreme Court in 2008 ruled for the first time that the Second Amendment bestowed an individual the right to keep a gun in the home for personal defense rather than related to military service.

Justice Antonin Scalia’s decision in District of Columbia v. Heller struck down a law that severely restricted gun ownership, but answered only part of what it means to “keep and bear arms.”

Advertisement



But it is not until now that the court has taken up the question of what it means to “bear” arms.

A ruling against New York would have consequences for at least a half-dozen states with similar laws.

Washington lawyer Paul D. Clement said the court should look at the experiences of the dozens of other states that do things differently. State laws saying that permits “shall” be issued to qualified applicants are much more common, he said, and cover some of the nation’s biggest cities.

He faced tough questioning from the court’s liberal justices. Justice Stephen Breyer said states have a reason to worry about “gun-related chaos” that could result from the proliferation of firearms in public places.

Justice Sonia Sotomayor said history shows that states have traditionally had the ability to regulate the carrying of weapons.

Justice Elena Kagan pushed Clement on whether such a right extends everywhere — on the New York City subway for instance.

She was joined there by Roberts, who wondered about football stadiums, university campuses, or places that serve alcohol. Justice Amy Coney Barrett mentioned Times Square on New Year’s Eve.

Clement tried to avoid specifics, but said generally states do have a right to ban guns from sensitive places.

The two people challenging the law — Robert Nash and Brandon Koch — have licenses to carry handguns for hunting and target practice. But New York authorities denied their requests for “unrestricted” licenses for self-defense because officials said they could not show a “special need for self-protection distinguishable from that of the general community.”

Advertisement



During the two-year period of 2018 and 2019, at least 65 percent of applicants in New York were approved for an “unrestricted” license, according to a state analysis of records submitted to the court.

But New York Solicitor General Barbara Underwood conceded the state was worried about issuing such permits in densely populated areas.

Roberts said that was a paradox, because that would seem to rule out urban, high-crime areas.

“How many muggings take place in the forest?” he asked.

Justice Samuel Alito pressed a similar line of questioning, saying the law only hurts “law-abiding” citizens who are “scared to death” when working late at night, for instance.

“There are a lot of armed people on the streets of New York and in the subways late at night right now. Aren’t there?” Alito asked. “All these people with illegal guns, they’re on the subway, they’re walking around the streets. But the ordinary, hard-working, law-abiding people I mentioned, no, they can’t be armed.”

Underwood responded, “The idea of proliferating arms on the subway is precisely, I think, what terrifies a great many people. The other point is that proliferating guns in a populated area where there is law enforcement jeopardizes law enforcement, because when they come, they now can’t tell who’s shooting and the shooting proliferates and accelerates.”

Four of the court’s conservatives, Clarence Thomas, Neil Gorsuch, Alito, and Kavanaugh, have shown impatience with the high court’s reluctance to jump back into the gun debate. In 2017, Thomas and Gorsuch said the court was treating the Second Amendment as a “disfavored right.”

Advertisement