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.
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
— 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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