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A majority of Supreme Court justices indicated Wednesday that they believe Americans generally have a right to carry a handgun outside the home for self-defense and that a New York law requiring special need for such a permit is too restrictive.
But there was also concern during the two-hour argument about the proliferation of guns in public spaces, and it was unclear how broadly the court might go in clarifying the Second Amendment right.
Some worried about guns on New York’s subway, in Yankee Stadium, on New York University’s urban campus or busy Times Square. Others said it would be difficult to compile a reasonable list of such sensitive places. They debated whether the right could be regulated differently in urban versus rural areas.
The court’s six conservative justices expressed varying levels of support for the two individuals and the National Rifle Association affiliate challenging New York’s requirement. Enacted more than a century ago, it requires those who want to carry a concealed weapon for self-defense to show “proper cause” for doing so.
Chief Justice John Roberts, the conservative member of the court thought least eager to want to weigh in on state and local gun control measures, nonetheless said New York’s law seemed at odds with a right protected by the Constitution.
“The idea that you need a license to exercise the right, I think is unusual in the context of the Bill of Rights,” Roberts said.
Justice Brett Kavanaugh was more direct: “Why isn’t it good enough to say I live in a violent area, and I want to be able to defend myself?”
The Supreme Court in 2008 ruled for the first time that the Second Amendment bestowed an individual the right to keep a gun in the home for personal defense rather than related to military service.
Justice Antonin Scalia’s decision in District of Columbia v. Heller struck a law that severely restricted gun ownership, but answered only part of what it means to “keep and bear arms.”
But it is not until now that the court has taken up the question of what it means to “bear” arms.
A ruling against New York would have consequences for at least a half dozen other states - including Maryland, California and Massachusetts - that have similar laws and big cities beset by gun violence.
Washington lawyer Paul Clement said the same reading of the Constitution that found a constitutional right to keep a gun in the home for self-defense animates the right to bear a weapon beyond the home.
“And 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 said.
He faced tough questioning from the court’s liberal justices. Justice Stephen Breyer said states have a reason to worry about “gun-related chaos” that could result from the proliferation of firearms in public places.
Clement said text, history and tradition were the way to interpret the constitutional right, but Justice Sonia Sotomayor had a different reading of history.
“What it appears to me is that the history tradition of carrying weapons is that states get a lot of deference on this,” she said. “I don’t know how I get past all that history without you sort of making it up and saying there’s a right to control states that has never been exercised in the entire history of the United States as to how far they can go in saying this poses a danger.”
Justice Elena Kagan was concerned about more guns in urban areas, and why states should not be able to assert more control there.
Clement said the court could take comfort in knowing that many big cities are covered by laws that have looser restrictions, such as Phoenix, Houston and Chicago, without noticeable problems.
Kagan responded: “I mean, most people think that Chicago is, like, the - the world’s worst city with respect to gun violence, Mr. Clement.”
She pushed Clement on whether such a right extends everywhere - on the New York City subway for instance. She was joined there by Roberts, who wondered about football stadiums, university campuses or places that serve alcohol. Justice Amy Coney Barrett mentioned Times Square on New Year’s Eve.
Clement tried to avoid specifics, but said generally that states do have a right to ban guns from sensitive places.
The two people challenging the law - Robert Nash and Brandon Koch - have licenses to carry handguns for hunting and target practice. But New York authorities denied their requests for “unrestricted” licenses for self-defense because officials said they could not show a “special need for self-protection distinguishable from that of the general community.”
During the two-year period of 2018 and 2019, at least 65% of applicants in New York were approved for an “unrestricted” license, according to a state analysis of records submitted to the court.
New York Solicitor General Barbara Underwood said the law was working well, and that history was on the state’s side.
“For centuries, English and American law have imposed limits on carrying firearms in public in the interest of public safety,” she told the court.
She was backed up by the Biden administration. New York’s requirement of showing proper cause “is firmly grounded in our nation’s history and tradition of gun regulation,” said deputy solicitor general Brian Fletcher, who cited a history of states that “either prohibited or required a showing of good cause to carry a concealable weapon like a pistol.”
But both were questioned sharply by conservative justices.
Underwood contended that a virtue of the New York law is that it relied on “licensing officers who are part of the local community and who take the density of population into account.”
But Roberts said urban areas may be where the need is greatest.
“If the purpose of the Second Amendment is to allow people to protect themselves, that’s implicated when you’re in a high-crime area,” he said.
He added: “How many muggings take place in the forest?”
Several times during the two-hour argument, Kavanaugh expressed concern about the discretion Underwood said was a virtue. “If it’s the discretion of an individual officer, that seems inconsistent with an objective constitutional right.”
Justice Samuel Alito said the law hurts “law-abiding” citizens who are “scared to death” when working late at night, for instance.
“There are a lot of armed people on the streets of New York and in the subways late at night right now. Aren’t there?” Alito asked. “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.”
Underwood responded, “The idea of proliferating arms on the subway is precisely, I think, what terrifies a great many people. The other point is that proliferating guns in a populated area where there is law enforcement jeopardizes law enforcement, because when they come, they now can’t tell who’s shooting and the shooting proliferates and accelerates.”
Justice Clarence Thomas noted that the men who were denied unrestricted licenses lived in Upstate New York. “Is that close to NYU?” he asked
Justice Neil Gorsuch, who was ill and participated from his home by phone, argued for a straightforward statement from the court about the right to carry arms. Some lower courts have said “they will not extend Heller outside the home until this Court does.”
Gorsuch, Alito, Kavanaugh and Thomas have shown impatience with the high court’s reluctance to jump back into the gun debate. In 2017, Thomas and Gorsuch said the court was treating the Second Amendment as a “disfavored right.”
Retired Justice Anthony Kennedy was not anxious to revisit the issue, and Roberts has not joined fellow conservatives in their criticism.
Adam Winkler, a UCLA law professor who has written extensively about the Second Amendment, said after Wednesday’s hearing that a majority of justices “appeared ready to declare New York’s restrictions on concealed carry unconstitutional.”
“New York will almost certainly have to revise its concealed carry laws to allow many more people to have guns on city streets,” Winkler said. “Perhaps New York will be forced to loosen its permitting requirements but will also strengthen the restrictions on sensitive places to make it difficult for carry in New York City.”
The two newest justices could be important to the breadth of the decision.
As appeals court judges, Kavanaugh and Barrett expressed support in their writings for examining the historical record when assessing the viability of gun restrictions, and making the argument that the restrictions in question were unconstitutional.
As a judge on the U.S. Court of Appeals for the 7th Circuit, Barrett issued a lengthy dissent in which she argued that only those shown to be dangerous may be stripped of their Second Amendment rights. She said a flat ban on any felon owning guns was wrong.
The “best historical support for a legislative power” to restrict gun rights would be “founding-era laws explicitly imposing - or explicitly authorizing the legislature to impose” such restrictions, she wrote.
She suggested at Wednesday’s hearing that the court should follow the history as stated in the majority opinion in Heller.
The case is New York State Rifle & Pistol Association v. Bruen.
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The Washington Post’s Tom Jackman and Mariana Alfaro contributed to this report.
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