The socially divisive issue of gun rights is back on the Supreme Court’s docket, as the justices prepare Wednesday to hear oral arguments in a high-stakes challenge that could allow more Americans the right to carry pistols in public spaces like parks, schools, shopping malls and churches.
The deep dive by the nation’s highest court comes at a time of rising crime rates in parts of the country, and politically-charged calls for major law enforcement reforms, including “defunding the police.”
At issue is a challenge to a restrictive New York state permit law – similar to seven other states – requiring most applicants to demonstrate “proper cause” to receive licenses for a concealed handgun in public.
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The justices in 2008 said Americans have a Second Amendment right to keep a handgun in the home for self-defense. Now the court’s 6-3 conservative majority may be poised to dramatically extend individual gun rights.
“The New York law effectively prevents almost everyone from carrying a gun outside the home for self-defense,” said Paul Smith, a Georgetown University law professor. “I think it’s extremely likely that the justices will say the Second Amendment right includes not just the right to have a gun for self-defense in your home, but also to bear arms outside the home for self-defense.”
Lower courts have upheld the 108-year-old state regulation for residents to show an “actual and articulable” need to have a concealed weapon in public. New York’s law creates a kind of discretionary system where permit seekers have to prove to the government why they should be one of the few people who gets a special concealed carry license.
New York says its law is done in the name of public safety, and that state and local lawmakers have long had wide discretion to impose what it calls reasonable firearm regulations. Supporters have told the court in amicus briefs that such laws in other parts of the country have been effective in reducing violent crime rates.
The key plaintiffs, New York State Rifle & Pistol Association and two private individuals, say those restrictions for law-abiding citizens go too far.
“The Constitution enshrines not just a homebound right to keep arms but a right to bear them outside the home, where the need for self-defense is acute,” said lawyers for the gun rights group. Under the current law, “the time when a handgun may be carried outside the home for self-defense… is never, the place is nowhere, and the manner is not at all. That is an evisceration, not a regulation, of the right.”
New York State Rifle & Pistol Association president Tom King on Thursday, Oct. 28, 2021, in East Greenbush, New York. (AP Photo/Hans Pennink)
Groups backing them say the number of people seeking concealed carry permits nationwide is growing rapidly.
“The right to carry outside one’s home goes to the heart of the right to ‘keep and bear arms’ protected by the Second Amendment,” said Tim Schmidt, president of the U.S. Concealed Carry Association. “There are millions of Americans who want to protect themselves and their families but can’t because a handful of states like New York refuse to recognize that constitutional right.”
According to a recent study by the Crime Prevention Research Center (CPRC), the number of concealed handgun permits has risen to 21.5 million, a 48% increase since 2016 and a 10.5% increase from the same time last year.
“The reason for the increase is the same as the increase in gun sales over the last two years, increased crime and concerns that police aren’t able to do their job, and the large numbers of inmates released from jails and prisons,” said John Lott, the president of CPRC.
But gun control advocates say striking down the law could lead to a flood of handguns in the streets, increasing the potential for mass shootings and domestic terrorism.
“The arguments put forward by the gun lobby in this case threaten the safety of every American and would turn the Framers’ vision of a civil society on its head. The stakes could not be higher,” said Jon Lowy, chief counsel at Brady, a leading gun control group. “A negative ruling could fundamentally change how courts interpret gun laws and public safety laws.”
It comes as President Biden has issued separate executive orders addressing what he labeled an “epidemic” and an “international embarrassment” of U.S. gun violence. The Biden Justice Department is backing the state, and will get argument time before the court to make its case.
President Joe Biden speaks on day three of COP26 on Nov. 2 in Glasgow, Scotland. The Supreme Court is expected to hear a case on gun rights while Biden has previously issued executive orders to address the gun violence.
(Ian Forsyth/Getty Images)
Most states have laws making it relatively easy to obtain a concealed carry permit. But several states have imposed stricter regulations like New York’s – including California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island.
This would be the first major gun rights case heard by the high court in many years. The 2008 landmark decision known as Heller affirmed an individual, nationwide right to own a handgun for home self-protection, but also limited somewhat the scope of the Second Amendment, giving states and cities discretion to continue crafting gun control regulations. The extent of that discretion will now be tested anew.
The justices will have wide latitude in deciding whether the New York law is constitutional. Its outcome will likely turn on the views from the court’s three newest members, Trump appointees Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
The high court last year declined to take up review of a case over other New York gun regulations. At the time, Kavanaugh agreed that particular appeal was not ripe for review, but indicated his eagerness to take the broader issue.
Justice Brett Kavanaugh, at the Supreme Court’s group photo session in Washington on April 23, had previously agreed with the decision not to take up a particular appeal about New York gun regulations.
(Erin Schaff-Pool/Getty Images)
“I share Justice Alito’s concern that some federal and state courts may not be properly applying Heller and McDonald,” he said in April 2020. “The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”
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Kavanaugh and his fellow conservatives will get that opportunity Wednesday with a ruling expected by June 2022, right in the middle of the congressional midterm elections.
The case is New York State Rifle & Pistol Association v. Bruen.
