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Jurisprudence

THE SUPREME COURT WANTS MORE GUNS ON THE NEW YORK SUBWAY

IN A MAJOR SECOND AMENDMENT CASE, THE CONSERVATIVE JUSTICES EMPATHIZED WITH
“LAW-ABIDING CITIZENS” WHO WANT TO TAKE GUNS EVERYWHERE.

By Mark Joseph Stern
Nov 03, 20215:00 PM

Gabby Giffords and Eric Lundy speak as gun violence survivors gather in front of
the Supreme Court on Nov. 3. Leigh Vogel/Getty Images
Tweet Share Comment
Tweet Share Comment

No need for suspense: The Supreme Court is going to force New York, and every
other state, to issue concealed carry permits to any law-abiding citizen who
requests one. The only question left, after oral arguments on Wednesday in New
York State Rifle & Pistol Association v. Bruen, is whether the conservative
supermajority will use sweeping language that casts doubt on the
constitutionality of other long-standing restrictions on the right to bear arms.
Based on the Republican-appointed justices’ biting questions, we can probably
assume it will.

Bruen marks the first time the Supreme Court has considered public carry laws
since it created an individual right to bear arms under the Second Amendment. In
2008’s D.C. v. Heller and 2010’s McDonald v. Chicago, the conservative majority
held that the Constitution protects the right to keep a handgun “in the home”
for self-defense. But what about outside the home? Most states already allow gun
owners to carry concealed weapons in public. Seven states, including New York,
do not. These states require residents to show “good cause”—that is, some
heightened need for self-defense—to get a permit for concealed carry. About 83
million people, or roughly one in every four Americans, live in a “good cause”
state. The lower courts have divided on the constitutionality of “good cause”
laws, and SCOTUS took up Bruen to resolve the dispute.

The timing, though, is not a coincidence. Lower courts have been split over
concealed carry restrictions for years, yet the Supreme Court did not step in
until 2021—after Justices Amy Coney Barrett and Brett Kavanaugh had joined the
bench. Barrett’s predecessor, Justice Ruth Bader Ginsburg, voted against gun
rights, while Kavanaugh’s predecessor, Justice Anthony Kennedy, demanded
language limiting the scope of Heller. Chief Justice John Roberts seemed eager
to avoid Second Amendment cases, if only for fear of backlash. But his vote no
longer matters with Barrett and Kavanaugh on the court. Both justices were
chosen, in part, because of their past opinions endorsing a broad vision of the
right to bear arms.

So when Paul Clement, arguing on behalf of the petitioners, began attacking New
York’s “good cause” rule on Wednesday, the court promptly cleaved along partisan
lines. The conservative justices mostly tossed softballs, while the liberal
justices launched a fusillade of questions about the constitutional and
practical consequences of his position. After Clement insisted that New York
could still ban guns in “sensitive places,” Justice Elena Kagan (who once shot a
deer while hunting with Antonin Scalia) pressed for examples: What about the New
York City subway? The NYU campus? Crowded stadiums? Packed protests?

Clement’s argument derived from a fantasy version of history.

After Clement refused to answer these questions directly, Barrett jumped in with
an assist. “Can’t we just say Times Square on New Year’s Eve is a sensitive
place? Because now we’ve seen people are on top of each other, we’ve had
experience with violence, so we’re making a judgment, it’s a sensitive place.”
Clement agreed that this restriction “might be a perfectly reasonable time,
place, and manner restriction.” But it’s pretty cold comfort if New York can
only ban guns in one of the most crowded places in the world on its single
busiest night, but perhaps that’s the best we can hope for from this 6–3 court.

Much of Clement’s argument derived from history, or rather a fantasy version of
history that erases a vast record of stringent gun regulations from the colonial
era through the ratification of the constitutional provisions that allegedly
establish an individual right to bear arms. Thirteen years of research have
demonstrated that Heller contains a multitude of errors that undercut its
central claim. It’s too late to persuade the Supreme Court’s amateur historians
that Heller was wrong. But, as Justice Sonia Sotomayor pointed out on Wednesday,
the historical record also demonstrates that the right to carry a concealed
weapon in public is not clearly rooted in American tradition, either. Sotomayor
reminded Clement that many of the colonies “restricted concealed arms” before
the Revolutionary War, and states maintained these bans following independence.
And “after the Civil War, there were many, many more states” that granted “a
right to arms but not concealed.”

“Many of the laws conditioned or retained the right of the state to decide which
people were eligible” to carry concealed guns, Sotomayor said. “To carry the
arms,” citizens “had to be subject to the approval of the local sheriff or the
local mayor.” Why, she wondered, “is a ‘good cause’ requirement any different
than that discretion that was given to local officials to deny the carrying of
firearms to people that they thought it was inappropriate?” The best Clement
could muster was that he didn’t “read” the “historical examples” the “same way”
Sotomayor did.

Later, when principal deputy Solicitor General Brian Fletcher came to the
lectern, he debunked Clement in brutal fashion: Fletcher identified laws in
Tennessee, Texas, West Virginia, and Alabama, that imposed draconian
restrictions on concealed carry in the 1800s. Justice Brett Kavanaugh tried to
counter by asserting that residents could carry a gun openly, but he was wrong;
as Fletcher explained, these laws banned both open and concealed carry. Justice
Clarence Thomas retorted that Fletcher sought to “focus a lot on western states,
but the West is different.” Again, nope: In addition to western states, Fletcher
identified southern states like Arkansas and northern states like Massachusetts
with historical analogs to New York’s law.

Frustrated with historical Whac-a-mole, Justice Samuel Alito took a simpler
approach: bemoan the plight of the “ordinary law abiding citizens” denied their
“right to self-defense.” His question to New York Solicitor General Barbara
Underwood is worth quoting in full:

> So I want you to think about people like this, people who work late at night
> in Manhattan, it might be somebody who cleans offices, it might be a doorman
> at an apartment, it might be a nurse or an orderly, it might be somebody who
> washes dishes. None of these people has a criminal record. They’re all
> law-abiding citizens. They get off work around midnight, maybe even after
> midnight. They have to commute home by subway, maybe by bus. When they arrive
> at the subway station or the bus stop, they have to walk some distance through
> a high-crime area. And they apply for a license, and they say: “Look, nobody
> has said I’m going to mug you next Thursday. However, there have been a lot of
> muggings in this area, and I am scared to death.” They do not get licenses, is
> that right?

When Underwood responded that it might be unwise to allow “a lot of armed people
in an enclosed space” like the subway, Alito snapped: “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?”

> In a colloquy with New York’s solicitor general, Justice Alito expresses
> empathy for working class New Yorkers forced to brave the city’s allegedly
> crime-infested subways on the way home from work, asking: Don’t they need to
> carry concealed guns to protect themselves? pic.twitter.com/n485J1Qy2m
>
> — Mark Joseph Stern (@mjs_DC) November 3, 2021

Leave aside the question of when, exactly, Alito last rode the New York subway,
which, despite some real problems, is not the crime-infested hellhole the
justice made it out to be. (He is from New Jersey, which may help to explain his
bias.) It’s extraordinary to see Alito express empathy, which he spurns in most
other contexts. The justice has no apparent empathy for Texans forced to flee
the state to terminate their pregnancies, or same-sex couples denied the right
to marry, or racial minorities persecuted by law enforcement, or people on death
row facing the threat of gruesome torture. But when a doorman wants to carry a
handgun on the subway, his heart bleeds for them.

Similarly, Alito proved uncharacteristically eager to divine the ostensibly
bigoted intent behind New York’s law. He was the first justice to cite a
controversial brief filed by Black public defenders making the contested claim
that the state’s concealed carry restrictions were motivated by racism,
nativism, and suspicion of organized labor. “There are those who argue,” he
said, that “a major reason” for the law’s enactment “was the belief that certain
disfavored groups—members of labor unions, blacks, and Italians—were carrying
guns and they were dangerous people and they wanted them disarmed.”

It is jaw-dropping to hear Alito express concern for labor unions, whose rights
he has ruthlessly crushed in case after case. But it’s even more jarring to hear
him acknowledge the possibility that racism may lurk behind the law. Just last
year, when the Supreme Court noted that racism drove states to allow
non-unanimous convictions in criminal trials, Alito flipped out: In a furious
passage, he castigated his colleagues for merely recognizing this tainted
history. “We should set an example of rational and civil discourse,” he huffed,
“instead of contributing to the worst current trends.”

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There’s little question that Alito and his conservative colleagues will
invalidate New York’s “good cause” requirement and compel the state to hand out
concealed carry licenses to any gun owner who wants one. At this point, the
bigger issue—one Justice Neil Gorsuch raised repeatedly—is how the court will do
it, and what ramifications its decision will have for other gun laws. Will the
court deploy expansive rhetoric that undermines other gun restrictions? There
are plenty under fire in the lower courts right now, including limits on open
carry, bans on assault weapons and large capacity magazines, waiting periods,
age restrictions, caps on the number of firearms an individual can buy each
month, and more. Courts have generally upheld these laws, though conservative
judges are increasingly eager to strike them down. Bruen could open the door to
a new era of Second Amendment jurisprudence in which all firearm regulations are
inherently suspect. All because five or six justices convinced themselves that
the framers would’ve wanted to flood the New York subway with guns.

Tweet Share Comment
Gun Control Guns Supreme Court New York Sonia Sotomayor Brett Kavanaugh Elena
Kagan Amy Coney Barrett

--------------------------------------------------------------------------------

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