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The Supreme Court's Conservatives Seem Skeptical Of Gun Restrictions

The justices heard oral arguments in a New York case on Wednesday that could have broad implications for gun control in the US.

Posted on November 3, 2021, at 1:19 p.m. ET

Joshua Roberts / Getty Images

A police officer stands in front of the Supreme Court as arguments begin in a major case on gun rights on Nov. 3.

The conservative majority on the Supreme Court sounded skeptical of a New York state law restricting who can carry firearms in public during oral arguments in a major gun rights case on Wednesday.

Though the case is focused on New York state, several other states and local jurisdictions have similar laws on the books. The court’s decision could have wide-reaching consequences for gun control in the US. This is the first big Second Amendment case the court has taken up in more than a decade, and the conservative justices have been spoiling for a chance to revisit gun rights.

The case comes before the court as the US faces a public health crisis of gun violence in the nation, according to the American Public Health Association. Gun violence is the leading cause of premature death in the country, responsible for more than 38,000 deaths annually. As of Nov. 3, at least 37,697 people have died from gun violence this year, according to data from the Gun Violence Archive.

The justices on Wednesday heard a challenge to a New York state law that requires people to have a “proper cause” to get a permit to carry a concealed gun in public. That requirement means New Yorkers have to show a specific need for self-defense that isn’t just speculative. The state also has more restrictive licenses to carry guns for specific purposes, like hunting.

The case was brought by the New York State Rifle & Pistol Association and two men, Robert Nash and Brandon Koch, whose applications for concealed carry were denied. They both, however, were granted licenses to carry firearms for the purposes of hunting, and Koch was approved for a permit to carry a gun for self-defense while traveling to and from his work.

Paul Clement, a conservative lawyer who served in the George W. Bush administration, argued on their behalf Wednesday that the law is unconstitutional. His main argument essentially boils down to saying that New York is requiring people to have an “atypical” need for self-defense in order to exercise their Second Amendment rights, thereby turning that right into a privilege.

New York Solicitor General Barbara Underwood and the Justice Department, which also argued on New York’s behalf Wednesday, countered that the state has had this law in place for more than a century and that it has a public safety interest in restricting who can carry firearms in public. Underwood suggested that if the court has questions about how the law has worked in New York before the justices can come to a ruling, they should send the case back down to the lower courts for fact-finding.

Chief Justice John Roberts raised questions about why Americans would need to justify their ability to exercise their Second Amendment rights when there aren’t similar requirements for other constitutional rights. “You don't have to say when you're looking for a permit to speak on a street corner, whatever, that, you know, your speech is particularly important,” Roberts said.

He said it was “unusual” to require a permit to exercise a right granted in the Bill of Rights, suggesting that there is a difference between doing a background check for a criminal record when granting a gun license and requiring someone to prove that they have the Second Amendment right in the first place.

Roberts also pressed Underwood on how the state treats rural and urban areas differently after the solicitor general said that it was easier to get a concealed carry permit in rural parts of the state. Roberts said he could understand prohibiting firearms in a crowded stadium, for example, but added that it seemed like weapons would be more necessary for self-defense in a “high-crime area,” not “when you're out in the woods.” He later asked Underwood, “How many muggings take place in the forest?”

Underwood responded that she didn’t know, but added, “I take your point that there is a different risk in the city, but there is also a different public safety consideration.”

Justice Brett Kavanaugh, meanwhile, repeatedly raised concerns over leaving the ability to carry a concealed firearm up to the “discretion” of a state licensing officer.

Underwood acknowledged that there was a degree of discretion involved, but she said that it was necessary. “It's hard to see how you could specify everything in advance and have it be a clear on/off switch and still take adequate account of, on the one hand, the need for self-defense, and, on the other hand, the strong public safety concerns.”

Justices on both the liberal and conservative wings also raised several questions about whether and where the state could restrict people from carrying firearms. Roberts asked Clement about multiple such scenarios, including whether people could be restricted from bringing guns into football stadiums or places that sell alcohol. Justice Amy Coney Barrett asked whether New York could just ban firearms at Times Square on New Year’s Eve where “people are on top of each other.” Justice Elena Kagan asked about New York City subway trains and urban college campuses, like New York University’s. (Clement joked, to laughter from the justices, “Well, NYU doesn't have much of a campus.”)

Clement said their focus was getting licenses for concealed carry, not on “sensitive place restrictions” that prohibit all weapons in a place, like a school.

Underwood warned the justices against the idea that merely restricting weapons in sensitive places could replace the state’s current system. She said she understood why it looked like an attractive solution in principle, but that it would be difficult to specify in advance any area where citizens having guns might become an issue. She brought up Barrett’s point about just shutting down concealed carry in Times Square on New Year’s Eve as an example, saying, “When commerce is in full swing, Times Square almost every night is shoulder-to-shoulder people.”

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.