Supreme Court sounds sour on New York concealed carry law

Justices grappled with what a ruling would mean for bans on guns in certain locations where firearms pose a higher risk to public safety

The Supreme Court is seen at sunrise on Sept. 29. Justices are expected to issue an opinion on the case involving a New York state gun law before the end of the court’s term next June. (Tom Williams/CQ Roll Call file photo)
The Supreme Court is seen at sunrise on Sept. 29. Justices are expected to issue an opinion on the case involving a New York state gun law before the end of the court’s term next June. (Tom Williams/CQ Roll Call file photo)
Posted November 3, 2021 at 2:47pm

The Supreme Court appeared ready Wednesday to strike down New York’s regime for licensing gun owners to carry concealed weapons in public, a ruling that would for the first time expand Second Amendment rights to outside the home for self-defense.

The justices grappled more at oral argument with what such a ruling would mean for states and cities that ban guns in so-called sensitive locations where firearms pose a higher risk to public safety, and they mentioned college campuses, Times Square, professional sports stadiums and subway systems.

In the case, two gun owners say the New York law is unconstitutional because it makes it almost impossible for otherwise law-abiding citizens to demonstrate a special need for self-protection before they can get a license to carry a handgun in public.

The Supreme Court is expected to issue an opinion before the end of its term at the end of June, when congressional midterm campaigns would be in full swing and gun control legislation has sharply divided Congress along partisan lines.

While the Supreme Court established a constitutional right to possess a firearm at home for self-defense in a pair of rulings more than a decade ago, the justices left little doubt Wednesday that they would rule that the right extends into public spaces.

Questions from Justice Brett M. Kavanaugh, likely a pivotal vote in the case, raised concerns that the New York law gives officials discretion about whether otherwise law-abiding citizens have a good enough reason to exercise such a constitutional right.

Kavanaugh’s line of questions suggested the court could limit its ruling to only New York-style concealed carry licensing schemes that require applicants to prove a special need, leaving out other states that give those licenses to everyone who meets certain other qualifications.

“The issue before us, as I understand it, is the permitting regime; we don’t have to answer all the sensitive places questions in this case, some of which will be challenging, no doubt,” Kavanaugh said.

Paul Clement, the attorney for the gun owners, responded that New York has laws banning guns in sensitive places, “and we have not challenged them in this litigation.”

There are 43 states that don’t have New York’s licensing regime and still have laws that protect sensitive places. “The thrust of this case is, you know, we’d like what they’re having,” Clement said. “We’d like what the people in the other 43 states are allowed to do.”

But those sensitive places were on the minds of justices from both the conservative and liberal wings of the court. Democratic members of Congress are among those who filed briefs raising concerns that a ruling in this case could clash with local laws that ban guns from certain places — including at protests in Washington. And New York and other legal experts contend that would put the Supreme Court, and not elected officials, in the position of determining where public safety trumps Second Amendment rights.

Clement, under questioning from Chief Justice John G. Roberts Jr. about location bans on guns at sports stadiums and places where alcohol is served, said the constitutionality of those location bans would have to be dealt with on a “case-by-case basis.”

That prompted Justice Elena Kagan to ask how that would “cash out” for the New York City subways, the campus of New York University, a ballpark with 50,000 people, or for any protest or event with more than 10,000 people.

Justice Stephen G. Breyer said that otherwise law-abiding citizens can go to a sporting event, drink alcohol, get pretty angry with each other, and “if they each have a concealed weapon, who knows? 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.”

Breyer asked what the Supreme Court’s ruling could say “that is going to be clear enough that we will not produce a kind of gun-related chaos.”

Justice Amy Coney Barrett said states have historically banned guns at sensitive places and suggested that maybe a ruling could treat those like restrictions on First Amendment free speech rights.

Barrett brought up the possibility of a ban against guns at Times Square on New Year’s Eve being constitutional because “people are on top of each other, we’ve had experience with violence, so we’re making a judgment, it’s a sensitive place.”

Later in the argument, New York Solicitor General Barbara Underwood used Times Square to underscore the difficulties in the court drawing a line between different locations where states could ban guns.

“When commerce is in full swing, Times Square almost every night is shoulder-to-shoulder people,” Underwood said. “So then you end up having a very big difficulty in specifying what all the places are that have the characteristics that should make them sensitive.”

Such a ruling would have “an attractive quality to it, but in implementation, I think it would be unsuccessful,” Underwood said.

Underwood also said the law in New York — which is home to the nation’s largest city, but also rural areas with hunting — reviews applications on a local level to balance self-defense with public safety.

Justice Samuel A. Alito Jr. was among the justices who questioned that scheme, and he posed a hypothetical about a worker in Manhattan who commutes on the subway late at night worried about high-crime areas when there are people who illegally carry guns.

“But all these people with illegal guns, they’re on the subway, they’re walking around the streets, but the ordinary hardworking, law-abiding people I mentioned now, they can’t be armed,” Alito said.

Underwood responded that even at midnight there are a lot of people in an enclosed space and that is precisely “what terrifies a great many people,” and that law enforcement protects the subways and additional guns can make their interactions less safe.

Roberts raised concerns about gun owners in rural areas being able to more easily obtain a license. If the purpose of the Second Amendment is to allow people to protect themselves, Roberts said, “that’s implicated when you’re in a high-crime area. It’s not implicated when you’re out in the woods.”

Underwood responded that self-defense is needed in the woods, where there’s the possibility of rapes and robberies on deserted paths with law enforcement not available to help.

“But how many muggings take place in the forest?” Roberts said.

Kavanaugh later used that exchange to expand on his concerns about the discretion New York has to determine if someone has a special need for self-defense.

“What if you’re a runner, you say, ‘I run a lot,’” Kavanaugh said. “And, as you correctly pointed out earlier, there are a lot of serious violent crimes on running paths; it’s a real problem. Is that good enough?”