New York Concealed Carry Restrictions Seem Likely To Fall As Important 2nd Amendment Case Argued In Supreme Court
“When Wednesday’s oral argument in New York State Rifle & Pistol Association v. Bruen drew to a close after roughly two hours of debate, it seemed likely that New York’s 108-year-old handgun-licensing law is in jeopardy.”
It’s been a decade since the U.S. Supreme Court took a major Second Amendment case, much to the chagrin of Justice Clarence Thomas.
But today was argument in New York State Rifle & Pistol Assn. v. Bruen, a case we previously covered, Supreme Court Agrees To Hear 2nd Amendment Case Over NY Restrictions On Concealed Carry:
Today, the U.S. Supreme Court granted review in New York State Rifle & Pistol Association v. Corlett (now v. Bruen), a case challenging the constitutionality of New York State’s concealed carry licensing scheme. The case argues that New York’s “may issue” licensing scheme violates individuals’ Second Amendment-protected rights—but could mean a lot more for gun rights across the nation.
If the name New York State Rifle & Pistol Association (NYSRPA) sounds familiar, that’s because a little over two years ago (in January 2019), the Supreme Court granted review in a prior NYSRPA case. That case sought to overturn New York City’s restrictive transportation ban on firearms licensed within city limits.
NYSRPA v. City of New York was the first gun rights case the Supreme Court agreed to hear since the landmark case of McDonald v. Chicago in 2010 (yes, the Supreme Court decided the Second Amendment case Caetano v. Massachusetts in 2016, and while still important, that was on a per curiam basis and involved a taser, not a firearm).
But after the Supreme Court granted certiorari in 2019, NYC did everything it could to avoid the Court’s review. NYC amended the challenged law and the state of New York passed a law purportedly preventing the city from reverting to its old restriction. At oral argument, the question of mootness—whether there remained an active, viable legal issue that must be resolved by the Court—became front and center.
Eventually, the Supreme Court determined the issue may have been moot and sent the case back to the district court for additional analysis. And then, to rub salt in the wound, the Court denied ten other pending Second Amendment cases before it, forcing many to question where a certain Chief Justice may fall on the Second Amendment issue.
The case could have wide implications, as we previously wrote:
New York State generally prohibits the carriage of a firearm in public—both openly and concealed. An individual can only carry a firearm concealed if they apply for and receive a license issued by a state “licensing officer.” But in New York, a concealed carry license isn’t so easy to come by.
A licensing officer will only issue a concealed carry permit if the applicant meets a lengthy list of criteria, including things such as being twenty-one years of age or older, being “of good moral character,” and not having been convicted of a felony or “a serious offense.” This list, although long, is fairly standard among states that require citizens to get a permit to carry a firearm concealed.
But New York is what is called a “may issue” state, meaning the state adds an additional barrier to getting a permit. A licensing officer will only issue a concealed carry license to an applicant “when proper cause exists for the issuance thereof.” In contrast, “shall issue” states require the licensing authority to issue a concealed carry license to an applicant so long as they are not specifically prohibited from having one.
New York’s discretionary consideration makes it all but impossible for law-abiding Americans to receive a permit to carry a firearm concealed in New York.
The burden is placed on the applicant to “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” In other words, an applicant’s mere desire to carry a firearm for the purpose of self-defense is not “proper cause” in the eyes of New York.
This is the law NYSRPA and two individuals are challenging. Robert Nash, one of those individuals, applied for a concealed carry license in response to a string of robberies in his neighborhood. He also completed an advanced safety course prior to applying. He was denied a license because he “failed to show ‘proper cause’ to carry a firearm.” Brendan Koch applied for a concealed carry license for the general purpose of self-defense after completing numerous voluntary safety courses. He was similarly denied a license.
New York is currently one of eight “may issue” states left in the country. So, on the surface, this case presents the Supreme Court with the opportunity to consider whether the ability to carry a firearm in public can be left up to a discretionary consideration of special need by a city or state.
You can listen to the oral argument and read the transcript at the Supreme Court website.
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I was not able to hear the arguments live today, but the consensus is that the law is in danger. From Scotusblog:
When Wednesday’s oral argument in New York State Rifle & Pistol Association v. Bruen drew to a close after roughly two hours of debate, it seemed likely that New York’s 108-year-old handgun-licensing law is in jeopardy. But the justices’ eventual ruling might be a narrow one focused on the New York law (and others like it), saving broader questions on the right to carry a gun outside the home for later…
Representing the challengers in the case, a gun-rights advocacy group and two men whose applications for unrestricted concealed-carry licenses were denied, lawyer Paul Clement told the justices that the text of the Second Amendment enshrines a right to bear arms, and the history and tradition of the United States confirm that the text protects an individual right to carry a gun for self-defense. Carrying a gun outside the home is a fundamental right that people in 43 other states enjoy, Clement observed. And the point of a constitutional right, he stressed, is that you don’t have to satisfy a government official that you have a good reason to exercise it….
Justice Brett Kavanaugh stressed that the question before the court is limited to the constitutionality of the New York permitting regime. He asked Clement whether his clients would object to the “shall issue” regimes used in other states, under which authorities are required to issue a carry permit as long as an applicant satisfies basic requirements such as a background check and firearms training. Clement acknowledged that, as a general matter, they would not object. “We’d like what they’re having,” he said.
And if the only question before the court was the constitutionality of the permitting regime, Kavanaugh continued, the court would not need to address “all of the ‘sensitive places’ questions.”
Clement agreed, noting that although New York has restrictions on “sensitive places,” his clients had not challenged them.
The conservatives seems not to buy New York’s defense of the statute:
Several of the court’s conservative justices took issue with the state’s rationale for granting unrestricted licenses to carry handguns more often in less densely populated areas, on the ground that disputes are less likely to break out. Roberts was dubious, and he peppered Underwood with questions. The court’s ruling in District of Columbia v. Heller, he pointed out, relied on the right to self-defense. Wouldn’t, he asked, someone have a greater need for self-defense in a higher-density area?
When Underwood responded that New York wanted to protect the right to self-defense but also protect public safety, Roberts pushed back again. He said he can understand a regulation prohibiting guns in a football stadium, but the right to protect oneself would be greater in a high-crime area. “How many muggings take place in the forest?” Roberts asked.
Justice Clarence Thomas questioned where New York draws the line between higher- and lower-density areas. “How rural,” he asked, “does the area have to be before your restrictions shouldn’t apply?” When Underwood responded that there isn’t a cutoff, but that unrestricted licenses are “much more readily available” in less densely populated areas, Thomas retorted that one of the challengers, Robert Nash, “lives in quite a low-density area.”
Justice Samuel Alito probed New York’s requirement that an applicant for an unrestricted concealed-carry license show a “non-speculative,” as Underwood put it, need to defend himself. Alito described workers in Manhattan – nurses, dishwashers, orderlies, doormen – who don’t have criminal records, but do have to take public transportation and then walk to their homes late at night “through a high-crime area.” Even if there have been a lot of muggings in their neighborhoods, Alito said, they would not be able to get a concealed-carry license under the current regime. How, he asked, “is that consistent with the core right to self-defense, which is protected by the Second Amendment?”
The L.A. Times wrote:
Gun control advocates heard little to cheer from the argument.
“We are on high alert about the dangerous consequences of a potential ruling in favor of gun extremists,” said Hannah Shearer, litigation director for the Giffords Law Center. “But the court still has an opportunity to reject the unprecedented and historically inaccurate view that the 2nd Amendment precludes meaningful gun safety regulations in public.”
But Eric Tirschwell, executive director of Everytown Law, pointed to the justices’ comments about restricting guns in sensitive places.
“Even the court’s most conservative justices have hesitations about granting the gun lobby its ultimate goal in this case — the unrestricted right to carry guns in all public places,” he said.
Some more consensus:
MAJOR GUN RIGHTS CASE: In one of the biggest gun rights cases in over a decade, the Supreme Court is hearing arguments over a case involving New York’s gun control laws. @PierreTABC is there with more on what justices have signaled. https://t.co/oQYcilocha pic.twitter.com/AHaFOLpjcH
— World News Tonight (@ABCWorldNews) November 3, 2021
U.S. Supreme Court justices debate gun rights in major New York case https://t.co/Gr0tdsKOcl pic.twitter.com/2wxse4wY9c
— Reuters (@Reuters) November 3, 2021
Supreme Court sounds likely to say Second Amendment generally gives people the right to carry a handgun in public. https://t.co/xcnWOcgkfj
— Greg Stohr (@GregStohr) November 3, 2021
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Comments
I listened to the entire case oral argument and read several (not all) including coincidentally all amicus briefs mentioned. It amazes me (having listened to other case oral arguments, and not being an attorney) how dumb and without basis (apparent thought, awareness) the governments’ arguments were. Clement dealt in fact though still erred; both government attorneys offer nothing more than emotion. Even the Justices all talked of the “Second Amendment Right”; not one mention that the Second Amendment is an “absolute restriction on the Government”. … I can only end with – regardless of SCOTUS’ decision, the only word that comes to mind is “Illegitimate”. …
P.S. Clement was excellent and led, as if the whole charade was not “Kabuki Theater”.
Could not agree more. The so-called Bill of Rights is misnamed. More accurately the first ten amendments would have called the Bill of Express Protections, backed up by the 9th and 10th.
So here we have this really perverse situation. We have, on one hand, this expressly stated, inherent protection (“shall not be infringed”), a part of the Constitution since 1791, and it’s being pushed by government that these words don’t mean what they plainly mean. Yet, on the other hand, there is this unstated “right” to privacy which is somehow and somewhere in various, unknown, mysterious umbras and penumbras. And what has that right given us? The “right” to kill “our Posterity” (to quote from the Preamble).
The left will protect, to the ends of the earth, that which isn’t there. but will work with all its might to ignore what is plainly there. That’s perverse.
And yet all these government officials, federal and state, take the Article VI oath to support and defend the Constitution!!!
actually disagree
it should have been called:
“Bill of Absolute Government Restrictions”
Huge case. Listening to the arguments and questions (yeah, I know), but also knowing that Kavanaugh has publicly said the court has failed in its duty protecting the 2nd Amendment, and Barrett almost sounding like the second coming of Scalia before joining the SC (yeah, I know), I will be shocked if NYSR&P loses.
But not 100% shocked if they lose!
There is simply no valid reason for them to lose unless you have irrational disgust for the 2nd Amendment. It doesn’t make a lick of sense you can own a gun but cannot carry one unless your State King decides you’re rich or powerful enough. Lower courts have thumbed their noses at Heller and McDonald for years, I cannot imagine the non-leftist SCOTUS judges are OK with that, either.
I heard that some are hoping Chief Justice Roberts votes against the petitioners, and for the state. Then Clarence Thomas as senior Justice would be in charge of who writes the majority decision if it goes against the state.
That way if he can get all 5 justices to sign on, not write concurring opinions, he can slip more inclusion of the Second Amendment under the Fourteenth Amendment, solidifying some not 100% clear and ambiguous language in “McDonald” that implied it is incorporated.
The SCOTUS is never going to do another “Roe v. Wade” decision where they toss every state’s (gun in this case) laws in the trash. Or on any other right period. All recognize it was a mistake, and is still causing problems decades later.
The SCOTUS rarely make a “revolutionary” decision. it builds up to it. many consider the Miranda decision (Miranda rights read to people in police custody.) a ‘bolt of lightening” but there were quite a few decisions before that that pointed that way. The court released a bunch of decisions in the 1950’s that preceded “Miranda’ that instructed states what it needed to do, but they ignored them mostly.
The “Brady” decision, where the court told the states prosecutors have to share exculpatory evidence to the defense if it shows up in their investigation in the late 1950’s was one. Now “Brady Material’ not shared can get a case tossed for cause, and no retrial allowed. Most prosecutors are very careful to not go there, ever.
The Right to Keep and Bear Arms is slowly being added to by the Court. It’s known the Roberts opposes this, and he got overruled on taking the previous NYC case, so he set it up for sabotage by not just dismissing it as “Moot” out of hand. He got progun forces to spend all the time and expense on SCOTUS arguments, then rendered no decision. A costly and demoralizing move.
Some say that Roberts will vote for it if he sees the case is going to go against NY so he can control the opinion, and dilute out any 14th Amendment inclusion of the Second in the decision.
Most likely that will lead to Thomas and others releasing a concurring opinion that dilutes the 6-3 decision and makes it weaker because there is no agreement even between justices. That is what I think Roberts will do. so it will end up a scratch basically, like a game that ends in a tie. Nobody wins anything, and they all expended a lot of effort for nothing.
Next to fall if this is successful should be Hawaii.
When I was a cop on Oahu only one person had a CCW permit. The Honolulu PD armorer. Ridiculous.
I believe if the New York law falls for any of several possible reasons, the laws of some other states will automatically fall at the same time.
I might be wrong but I last 10 years have come to the conclusion these Supreme Being cases are decided long before the first word of argument is spoken, it’s a political ruling and that’s the end of it.
That is why SCOTUS waits for the “right” question to be asked – narrow and focused. In NYSRPA v Bruen:
GRANTED LIMITED TO THE FOLLOWING QUESTION: WHETHER THE STATE’S
DENIAL OF PETITIONERS’ APPLICATIONS FOR CONCEALED-CARRY LICENSES
FOR SELF-DEFENSE VIOLATED THE SECOND AMENDMENT.
What was interesting to me was the discussions and amici (which I read – perhaps 4) did not stay focused. As an example, during the oral arguments there appeared to be a carve-out for NYC: Breyer (pg 11, lines 14-15) “We’re talking here about outside New York City.”
And, near total avoidance of the arbitrary process of deciding to “award” unrestricted carry licenses in upstate counties (Total NYS Counties 62); licensing officers in NYC(five counties), LI (two counties), and Westchester are all the Chiefs of Police (rabidly anti-gunners (which was a condition of employment), unless you are politically connected or otherwise bribe the NYPD pistol licensing officer(s)), while the other 54 counties are “judges” of varying political bias.
So an upstate judge in one county accepts the Second Amendment as a restriction on the government and approves “all” applications as unrestricted; those individuals can now carry throughout the state (except NYC) – its discrimination and clearly arbitrary.
Now Clement in his final comments (Page 121, Lines 9 – 17) at the end of the session stated:
“First, that in order to exercise a constitutional right that New York is willing to concede extends outside the home, you have to show that you have an atypical need to exercise the right that distinguishes you from the general community. That describes a privilege. It does not describe a constitutional right. That is a sufficient basis to invalidate the law.”
And, in his next comment mentions the Bronx Public Defenders Amicus and the cost of that discretion and denial to low income individuals.
Those two points are the the case, from my perspective. And, if the NYS regulatory regimen is up held are more than adequate argument to deem NYS government and SCOTUS illegitimate authorities.
ACB and Kavanaugh will disappoint us again.
I find this entire exercise an absurdity. It takes SCOTUS to decide whether or not our Constitutional rights exist outside our homes, and just what amount a state can modify, restrict, or amend the rights granted in the federal constitution.
I am not a lawyer, but I do NOT like, at all, how the 2A conversation keeps getting framed around self defense.
The Constitution does NOT say:
Does it?
“For your protection, we placed a soldier, armed with a fully automatic machine gun, at every street corner of the city. You don’t need to carry your own gun for self defense.”
That sounds like a solid argument under that premise, doesn’t it?.
And that is, more or less, what we will hear from “them” eventually.
I see the basis for discussion on two premises:
1) bad guys should never have guns, but always will;
2) good guys should always have the right to have the means to defend themselves from bad guys with guns.
If someone develops the perfect anti-gun force field, available at low cost to any member of the public, I’d be happy to ban guns – but, with that kind of tech in place, you wouldn’t have to. And if the government wanted to give me the money to hire my own personal bodyguard, who was allowed to carry a gun, meh, I might be okay with that too. The problem with the soldier on the corner is that we’re not in command, and they’re not everywhere.
I think you are part of the problem.
The 2A exists explicitly to give citizens the means to kill the soldiers and members of a tyrannical government. It isn’t specifically about self-defense in the same way it isn’t specifically about hunting.
I can see the conversation in my head, long ago:
Jefferson: So now that we’re done writing the Constitution, I hear you have some more things to add into law.
Karen: Yes, we plan on restricting all these guns lying around, now that we don’t need them to fight the British.
Jefferson: Oh, really? How?
Karen: Well, first we pass laws to make it illegal to carry them in public, and require them to be locked up when they’re in your home. Separate from any ammunition, of course, which we will require to be locked up also. One key to be given to the government, of course. Oh, and each firearm will be numbered and the ownership identified in government documents, just in case we need to take them away. You know. For reasons.
Jefferson: (muttering under his breath) Looks like we need to add a few amendments to this.
““How many muggings take place in the forest?” Roberts asked.”
Gaby Petito unavailable for comment.
Perhaps if Gabby had been allowed to be armed, without restriction, things might have turned out differently….
I will ask this to head off UserP: do bears mug in the forest? Yes, and some of those muggings ( facial expressions) are quite funny.
There’s one.
Alito induced the State’s lawyer to admit
– there are lots of guns on the subways right now
– held by CRIMINALS
– and that the police arrest them and take their weapons a lot
the only folks who obey gun control laws are the law abiding
one thing that the justices missed. In that discussion she spoke about the states ‘balanced interest’ to lower the number of guns etc. and how it correlates with lower gun violence.
What the petitioners’ lawyer should have rebutted is, the guns that the state is removing are ILLEGALLY carried guns, and that we agree, taking illegal guns from criminals will lower ‘gun violence’ and ‘gun crime’.
I saw a report by I believe John Stossell that a guy was arrested in New York for gun possession, for having a spring from a magazine. Someone else was locked up for having a spent round on a chain he wore as a necklace. A BB gun is illegal in NYC without a firearms license. Mr. Stossell couldn’t get a permit despite numerous threats and a spotless criminal record. NYC has ignored the 2nd Amendment and has instead empowered criminals with their no bail policy.