The U.S. Supreme Court on Wednesday will hear oral argument in a challenge to a longstanding New York law that limits the right to carry a concealed handgun for self-defense outside one’s home—a Second Amendment case that could have a profound impact on gun-control laws.
The case comes as Rochester and many other cities nationwide are fighting a plague of gun violence. With two months left in 2021, Rochester already has recorded at least 348 shooting victims, compared with 335 for all of 2020, a year that saw a sharp spike in gun violence. Of those victims, 42 have died, one fewer than last year’s 12-month total.
In the case before the Supreme Court, New York State Rifle & Pistol Association v. Bruen, the right to carry a handgun outside of the home for self-defense is not in dispute. Rather, the issue is whether—and if so, when—restrictions on that right are allowed under the Second Amendment.
“New York continues to make it all but impossible for typical, law-abiding citizens to exercise their right to bear arms where the right matters most and confrontations are most likely to occur: outside the home,” attorneys for those challenging the law argue.
In response, New York contends that the “claim of an entitlement to carry concealed handguns anywhere (or virtually anywhere) in public … defies both the historical record and this Court’s precedents.”
The case was brought by the New York State Rifle & Pistol Association, a gun-rights advocacy group, and two men, Robert Nash and Brandon Koch, whose applications for a concealed-carry license were rejected, though they did receive more restricted licenses. A district court granted the state’s request for dismissal of the case, which the U.S. Court of Appeals for the 2nd Circuit upheld. The Supreme Court in April agreed to decide whether the denial of the two men’s license applications violated the Second Amendment.
New York’s law—established more than a century ago and similar to laws in seven other states—requires applicants seeking a license to carry a concealed handgun outside of the home to show “proper cause,” which courts have interpreted as a special need for self-defense. A case preview by SCOTUSblog says that someone who has been the target of recurrent physical threats likely would qualify for a license, but “a general desire to protect oneself or one’s property is not enough to obtain an unrestricted license to carry a concealed handgun.” (Carrying unconcealed guns in public, or “open carry,” generally is not allowed in New York.)
The challengers argue that the Second Amendment’s wording “guarantees a right to ‘bear’ arms as well as ‘keep’ them, and a right to bear arms only within the confines of a home offends both common sense and original public meaning.” They also contend that the history of gun rights in this country and England preceding the ratification of the U.S. Constitution supports their view.
In wording perhaps aimed at members of the Supreme Court’s conservative majority who have expressed concern that the Second Amendment has become a “disfavored right,” the challengers assert that the court would be quick to strike down “a law that reserved First Amendment rights to those with an unusually compelling need to worship or criticize the government.”
In its defense, New York claims that its law is supported by a long history of similar restrictions in the U.S. and England. Siding with the challengers would “break with seven centuries of history and have devastating consequences for public safety. It would not simply invalidate longstanding ‘proper cause’ laws like New York’s. It would also jeopardize the firearm restrictions that all States and the federal government have adopted to protect the public in sensitive places where people typically congregate—settings like courthouses, airports, subways, sports arenas, bars, gaming facilities, houses of worship, and schools.”
This is the first major Second Amendment case that the Supreme Court has taken up in more than a decade. In a 2008 case, District of Columbia v. Heller, the court ruled that the Second Amendment protects individuals’ right to keep a gun in the home for self-defense. In its McDonald v. City of Chicago decision two years later, the justices held that Heller did not apply only to the federal government—the states also must respect that right.
Now, with President Donald Trump’s three picks—Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—seated on the court, many legal observers believe a conservative majority of justices will topple New York’s 108-year-old law.
However, the more than six dozen amicus briefs filed with the court suggest an element of unpredictability. Not all conservatives support the challenge to New York’s law. One brief filed by several prominent Republicans states that New York’s law should be upheld, “based on the broad founding era statutory restrictions and the centuries-old unbroken history and tradition of public carry restrictions.” They pointedly noted that similar restrictions in the District of Columbia “indisputably prevented even more bloodshed and doubtless saved many lives during the January 6, 2021, insurrection in the Nation’s Capital. Indeed, the statutes that make public-places carry illegal in the streets of the District of Columbia may well have prevented a massacre that day.”
In contrast, a brief filed by Black legal aid lawyers and others contends that “New York enacted its firearm licensing requirements to criminalize gun ownership by racial and ethnic minorities.” They say the “consequences for our clients are brutal,” adding that they “routinely see people charged with a violent felony for simply possessing a firearm outside of the home, a crime only because they had not gotten a license beforehand.”
Also supporting the challenge is the Liberal Gun Club, whose membership is “primarily left-of-center individuals who also enjoy owning and using firearms.”
The court’s decision in New York State Rifle & Pistol Association v. Bruen is not expected until mid-2022.
Paul Ericson is Rochester Beacon executive editor.