The Supreme Court, Guns, and the Future of Public Carry Laws

On November 3rd, the parties in New York State Rifle & Pistol Association v. Bruen (2021) concluded oral arguments before the United States Supreme Court after two hours of lengthy debate. The question before the Justices? Whether New York State’s denial of concealed-carry applications for the two petitioners (Robert Nash and Brandon Koch) violated the Second Amendment. At issue specifically is the law’s requirement of “proper cause” for a permit, which New York Courts have loosely defined as a special need to defend oneself. (Howe) The case also presents a unique opportunity to expand and clarify the Court’s previous decision from District of Columbia v. Heller (2008), a monumental decision that enshrined an individual's right to keep and bear arms for traditional purposes of self-defense (Id at 599-600).

Though New York’s 108-year-old handgun law seemed to be in the crosshairs at the conclusion of oral arguments, the justices may ultimately decide to narrow their focus on just the New York law, delaying broader questions on the right to carry outside the home. Such a development would prove significant, as the New York law at issue resembles similar gun-control measures in states such as California, Maryland, New Jersey, Massachusetts and Hawaii. (Howe)

The History and Current State of New York’s “Proper Cause” Regime 

Though New York has regulated the carrying of firearms in public spaces since the Founding era, as many states have done, the first instance of a licensing scheme was implemented in 1884 for minors (Ch. 46, § 8, 1884 N.Y. Laws 44). In 1905, the law was expanded to encompass all individuals who sought to possess a handgun in public (Ch. 92, § 2, 1905 N.Y. Laws 129). Then, in 1913, the New York State legislature established statewide rules for issuing concealable carry licenses, with the statute permitting magistrates to issue licenses if they were “...satisfied of the good moral character of the applicant,” and if “...no other good cause exist[ed]” to deny the license (Ch. 608, § 1, 1913 N.Y. Laws 1627, Id at 1629).

Under New York’s current licensing scheme, there are two types of licenses that may be issued. Residents have the option of obtaining a “premises” license (N.Y. Penal Law § 400.00(2)(a)–(b)), enabling handgun possession in either the home or a place of business, or a “carry” license (N.Y. Penal Law § 400.00(2)(c)–(f)), permitting the carrying of concealed handguns in public spaces. “Carrying” licenses are issued to applicants engaged in particular forms of employment (ex. Correctional facility employees)(N.Y. Penal Law § 400.00(2)(c)–(e)), or to applicants who can show a “proper cause” for carrying a handgun in public (N.Y. Penal Law § 400.00(2)(f)).

“Proper cause,” as defined by New York Courts, includes “...carrying a handgun for target practice, hunting, or self defense,” (O'Connor v. Scarpino, 83 N.Y.2d 919, 921 (N.Y. 1994)), however obtaining a license requires applicants to demonstrate “...an actual and articulable - rather than merely speculative or specious - need for self-defense.” (Kachalsky v. County of Westchester, 701 F.3d 81, 98-99 (2d Cir. 2012)). State court judges and local police commissioners are tasked with granting or denying “carry” licenses based on an evaluation of whether an applicant can display such a “proper cause” (N.Y. Penal Law § 265.00(10)).

This particular procedure is also the source of adjudication between New York and the petitioners, as they were denied applications for failing to establish any special or unique danger that would grant them such licenses.

What Went Down During Oral Arguments?

Despite the potentially narrow focus of the ruling, both the “liberal” and “conservative” blocs questioned the arguments presented by both sides.

Lawyer Paul Clement, arguing on behalf of the petitioners, contended that the text of the 2nd Amendment, along with the history and tradition of firearms in the United States protected an individual right to carry a firearm for self-defense. (Howe) He also insisted on observing only the relevant history to the founders drafting of the Second Amendment, and that such an inquiry would terminate upon reaching the 19th century. (Howe) Justice Sonia Sotomayor pushed back, citing a number of regimes from “[e]nglish law through the colonies...to even now…” that have regulated firearm carrying in public spaces. (Howe) Justice Elena Kagan also pushed back against this assertion, referencing the “...stamp of approval…” that the Heller (2008) decision provided for various gun control measures. (Howe) When questioned by Chief Justice John Roberts about restrictions on particular venues (like University campuses), Clement answered by stating that such a determination would be resolved on a case-by-case basis. (Howe)

Arguing on behalf of New York Barbara Underwood, the state’s solicitor general, recounted that English and American laws had imposed limits on public carrying for centuries, and that public safety had always been a rationale behind such measures. (Howe) She also listed several 19th century state laws that, according to her, were comparable to the historical and current New York law. (Howe) Several of the court’s conservative justices, however, took issue with the State’s denial of licenses in densely populated urban centers, along with the granting of such licenses in sparsely populated regions. (Howe) Chief Justice Roberts, for instance, pointed out that the Heller (2008) decision relied on the right to self-defense as its primary rationale, and asked why someone in a high-density area would not require a greater need for self-defense. (Howe) Justice Clarence Thomas sought a definitive distinction between high-and-low population centers, asking “[h]ow rural...does the area have to be before your restrictions shouldn’t apply?” When Underwood responded that there wasn’t a cutoff, but that unrestricted concealed-carry licenses were more readily available in thinly populated regions, Thomas countered that Nash, one of the challengers, “lives in quite a low density area…” (Howe) Justice Samuel Alito and Brett Kavanaugh probed the “non-speculative” requirement of the law, while also questioning why residents in a high crime area were unable to establish “proper cause.” When Underwood responded by claiming that the applicant's entire situation was considered by the relevant licensing officer, Kavanaugh protested that “[such a measure] seem[ed] inconsistent with an objective constitutional right…” (Howe)

Such a complex combination of history, tradition, and rationales will certainly produce an extensive opinion when the Court ultimately decides the case.

Additional Arguments from the Respondents in Support of the New York Regime

In the amicus brief filed by New York state in opposition, several points are made relating to state flexibility, public safety, federalism, and circuit court consensus regarding licensing schemes.

The respondents argue that history and Supreme Court precedent on federalism permit states to employ a wide range of policy choices for themselves, with particular regard to the unique law enforcement and public safety issues faced by citizens of those states. In particular, they note that this type of regime is preferable, given that under it “...local parties [are] more sensitive to the diverse needs of a heterogeneous society, permit[ing] innovation and experimentation, [and] enabl[ing] greater citizen involvement in democratic processes...making government[s] more responsive to...a mobile citizenry” (25, quoting Bond v. United States, 564 U.S. 211, 221 (2011)). Certainly there is an argument to be made that an effective law in a rural province of Alaska may be entirely inoperable in a dense and urbanized city in New York, and that local and state legislatures are better adept to address the localized safety needs based upon uniquely applicable circumstances.

The public safety interest is a compelling rationale that has enabled states to adopt new (and unique) measures for advancing this concern. As the respondents point out, “[t]he Second Circuit...concluded that New York’s licensing scheme was sufficiently related to New York’s ‘substantial [and] compelling, governmental interests in public safety and crime prevention…” (27, quoting Kachalsky v. County of Westchester, 701 F.3d 81, 97 (2d Cir. 2012)). Upholding public safety may also be relevant in areas outside of law enforcement activities. With greater availability of firearms, perhaps a fight in Times Square could turn lethal, or a vehicle accident on the George Washington Bridge could turn lethal. Such a dramatic shift in the safety of public spaces certainly presents a plausible rationale for upholding regulations tied to the public safety interest.

Consensus amongst the First, Second, Third and Fourth Circuit Courts of Appeals in regard to regulating public carrying is, according to the respondents, another justification for New York’s regime. They mention, in particular, that all circuits seem to agree on a different application of the Second Amendment in public spaces, and that under Heller, state regulatory measures that are part of a “longstanding” tradition are “presumptively lawful” (8-10, quoting Heller 595 U.S. 570, 626-27 (2008)). Additionally, all four circuits concluded that schemes similar to New York’s fall within the historical scope of the 2nd Amendment and are sufficiently related to the government’s interest in public safety (10-11). Finally, the respondents also note the Seventh circuit's decision in Moore v Madigan (2012), in which the majority described New York’s regime as striking a “...proper balance between the interest in self-defense and the dangers created by carrying guns in public” (12, quoting Moore 702 F.3D 933, 942 (7th Cir. 2012)).

Additional Arguments from the Petitioners in Opposition to the New York Regime

The amicus brief submitted by the New York State Rifle and Pistol Association contends that New York’s licensing regime is squarely misplaced within the pivotal right to self-defense in Heller, the history of restrictions on public carrying, and the licensing schemes that have been upheld or struck down in U.S. courts.

Heller held that the Second Amendment protects “...the individual right to possess and carry weapons in case of confrontation” (6, quoting 554 U.S. 570, 592), with the majority in that decision defining “bear” as to “wear [or] carry…upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person” (6, Id at 584). Since person-to-person conflict may naturally occur outside of one’s home, Heller’s self-defense rationale would seem to permit individuals to carry firearms for this purpose. And while the Heller decision was primarily focused on possessing a gun inside of one’s home, the Court took pains to declare that “...the core purpose…” of the right was “self-defense” (7, Id at 630).

The petitioners also maintain that the history of the Second Amendment affirms the toleration of arms carrying outside the home (7). In supporting this position, they cite from the eighteenth century legal scholar William Blackstone, who concluded that English laws prohibiting the public carrying of weapons were only applicable to those that were “...dangerous and unusual…” (William Blackstone, Commentaries 148-49 (1769)). As such, pistols would be permissible as firearms to carry in public given their lack of “dangerous and unusual” characteristics. The English Declaration of Rights (1689) is also discussed as a document affirming the peaceable carrying of arms as a natural right (8). And with regard to the historical circumstances surrounding “good cause licensing” schemes, the petitioners sustain that such 19th century measures (like Massachusetts's peaceable carry law, 1836) permitted the carrying of arms under a “reasonable cause to fear an assault or other injury,” or were completely invalidated if there was no consideration of time and place circumstances (10, see Andrews v. State 50 Tenn. 165, 187 (1871)).

Finally, the petitioners assert that New York’s regime is indistinguishable from those that have been invalidated by panels in the 9th circuit in Young v. Hawaii (896 F.3d 1044 (9th Cir. 2018)), and Peruta v. County of San Diego (742 F.3d 1144, 1167 (9th Cir. 2014)). Such disagreement, they contend, shows that there is a lack of universal agreement amongst the federal courts regarding licensing schemes like New York’s.

Ultimately, the Supreme Court’s decision will have to strike a balance between the fundamental right to self-defense, presented in Heller, and the role that states have in regulating health and public safety, as permitted under our federalist system. With such an extensive, yet contentious assortment of debates surrounding licensing schemes like New Yorks, it will be difficult to see just how the Justices will strike this balance.

Sources:

1. Howe, Amy. “In Major Second Amendment Case, Court Will Review Limits on Carrying a Concealed Gun in Public.” https://www.scotusblog.com/2021/10/in-major-second-amendment-case-court-will-review-limits-on-carrying-a-concealed-gun-in-public/  

2. Howe, Amy. “Majority of Court Appears Dubious of New York Gun-Control Law, but Justices Mull Narrow Ruling.” https://www.scotusblog.com/2021/11/majority-of-court-appears-dubious-of-new-york-gun-control-law-but-justices-mull-narrow-ruling/

3. Hamm, Andrew. “New York State Rifle & Pistol Association Inc. v. Bruen.” https://www.scotusblog.com/case-files/cases/new-york-state-rifle-pistol-association-inc-v-bruen/  

4. New York State Rifle & Pistol Association v. Bruen. Brief amicus curiae of Kevin M. Neylan and Paul D. Clement. https://www.supremecourt.gov/DocketPDF/20/20-843/171462/20210310110722072_20-843%20Reply%20Brief%20Final.pdf

5. New York State Rifle & Pistol Association v. Bruen. Brief amicus curiae of Barbara D. Underwood, Anisha S. Dasgupta, and Joseph M. Spadola. https://www.supremecourt.gov/DocketPDF/20/20-843/169604/20210222170827872_20-843_Brief%20in%20Opposition.pdf