The Supreme Court seemed wary of a New York law that strictly limits the carrying of guns outside the home during arguments Wednesday in the first major Second Amendment clash in more than a decade.
The conservative-majority court posed sharp questions about the constitutionality of the New York regulation, which gives government officials broad discretion over the issuing of licenses to carry a concealed firearm.
“Why isn't it good enough to say I live in a violent area and I want to be able to defend myself?” Justice Brett KavanaughBrett Michael KavanaughHow Cruz Supreme Court case could lead to unlimited anonymous election spending Will the justices end race-based affirmative action? Are the legal walls closing in on Donald Trump? MORE asked New York’s solicitor general. “With any constitutional right, if it's up to the discretion of an individual officer, that seems inconsistent with an objective constitutional right.”
At issue in the case is New York’s so-called proper cause law, which generally requires applicants to demonstrate a special need, beyond a basic desire for self-defense, to qualify for an unrestricted concealed carry license. New York is among eight states and the District of Columbia that give wide discretion to licensing officials.
The dispute arose after two New York residents were denied unrestricted carry licenses. Backed by an affiliate of the National Rifle Association, the applicants sued the licensing officials and, after losing in the lower courts, appealed to the Supreme Court.
Paul Clement, a former U.S. solicitor general who represented the gun license applicants on Wednesday, argued that New York’s law violates the right to keep and bear arms enshrined in the Constitution.
“At the end of the day, I think what it means to give somebody a constitutional right is that they don't have to satisfy a government official that they have a really good need to exercise it or they face atypical risks,” Clement told the justices.
The court’s three liberal justices appeared to give a more sympathetic audience to the public safety rationale underlying New York’s law.
“I think that people of good moral character, who start drinking a lot and who may be there for a football game or some kind of soccer game, can get pretty angry with each other. And if they each have a concealed weapon, who knows?” Justice Stephen BreyerStephen BreyerProgressives see Breyer retirement as cold comfort Briefing in brief: Biden committed to naming Black woman to Supreme Court The names to know as Biden mulls Breyer's replacement MORE said to Clement. “And there are plenty of statistics in these briefs to show there's some people who do know. And a lot of people end up dead.”
The Department of Justice, on behalf of the Biden administration, argued in support of New York and urged the court to defer to the longstanding practice of allowing legislatures to place reasonable limits on firearms to protect public safety.
“We don't quarrel at all with the notion that the Second Amendment has something to say outside the home,” said Justice Department attorney Brian Fletcher. “Our submission is just that to understand how it applies outside the home, one has to look to the history and tradition of regulations. And ... there is a substantial history and tradition of a regulation in the public carrying of concealable weapons, including pistols, because of the dangers that they present and that regulations of that type, of which New York's is one, are consistent with the right recognized in the Second Amendment.”
New York solicitor general Barbara Underwood, in an apparent effort to underscore the reasonableness of the state’s licensing regime, said unrestricted concealed carry is more readily available in rural areas than cities.
But she faced pushback from Chief Justice John Roberts over what he saw as a logical inconsistency in her argument concerning self-defense.
“How many muggings take place in the forest?” asked Roberts, who appeared more receptive to the argument advanced by the gun license applicants.
Justice Samuel AlitoSamuel AlitoWill the justices end race-based affirmative action? Supreme Court just added affirmative action to its list of conservative unfinished business It's up to America's state courts to rescue democracy MORE, one of the court’s most conservative justices, pressed a similar point.
“How many illegal guns were seized by the New York Police Department last year? Do you have any idea?” he asked Underwood, who said the number was likely substantial. “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?”
Wednesday’s case in some ways picks up where the Supreme Court left off roughly a decade ago. In the court’s 2008 decision in District of Columbia v. Heller, the justices ruled 5-4 that the Second Amendment protects an individual's right to keep a gun in the home for self-defense.
Although the court in the Heller case noted that the Second Amendment right is “not unlimited,” the justices largely left unanswered the question of which gun restrictions are permitted under the Constitution.
A decision in the case, New York State Rifle & Pistol Association v. Bruen, is expected this summer.