WASHINGTON — The Supreme Court is preparing to hear a gun rights case that could lead to more guns on the streets of New York and Los Angeles and threaten restrictions on guns in subways, airports, bars, churches, schools and other places where people gather.
As gun violence continues to rise, Wednesday’s case will be heard by the justices. It could significantly increase the eligibility of individuals who want to own firearms in their everyday lives. The case centers on New York’s restrictive gun permit law and whether challengers to the law have a right to carry a firearm in public for self-defense.
Gun control groups argue that states will have to ease restrictions if they are required by a high court decision. Gun rights advocates, however, argue that the potential for confrontation is exactly why they are entitled to self-defense weapons.
Gun rights activists hope the court’s 6-3 conservative majority will support them. They ask the court not to find New York’s law too restrictive. Similar laws are found in other states. Gun control advocates acknowledge the court’s composition has them concerned about the outcome.
“The stakes really could not be higher,” said Jonathan Lowy, chief counsel at the gun control group Brady.
In 2008 and 2010, major gun rights rulings were issued by the court. These decisions created a national right to have a firearm at home in self-defense. The question for the court now is whether there’s a similar Second Amendment right to carry a firearm in public.
The question isn’t an issue in most of the country, where gun owners have little difficulty legally carrying their weapons when they go out. A half dozen states, including California, which is the most populous, have restrictions on gun ownership. The justices could decide whether those laws, “may issue” laws, can stand.
It is refreshing to see that the high court now hears a gun rights case after many years of turning them down. The justices ended one gun case they agreed to hear in 2020, when they tossed the case.
However, after Justice Ruth Bader Ginsburg’s death last year, followed by her replacement with conservative Justice Amy Coney Barrett in the same position, the court decided that it would once again engage the gun debate.
Eric Tirschwell, the legal director at Everytown for Gun Safety, said there’s “reason to be concerned” for groups like his that “a type of law that the court was not interested in or willing to review in the past, they now are.”
The New York law the court is reviewing has been in place since 1913 and says that to carry a concealed handgun in public for self-defense, a person applying for a license has to demonstrate “proper cause,” an actual need to carry the weapon. When local officials issue a gun license, it’s either unrestricted — allowing the person to carry a gun anywhere not otherwise prohibited by law — or restricted, allowing the person to carry a gun in certain circumstances. It could also allow the person to use a firearm for target shooting and hunting while on vacation or in rural areas.
The New York State Rifle & Pistol Association and two private citizens challenging the law have told the Supreme Court that it “makes it effectively impossible for an ordinary, law-abiding citizen to obtain a license to carry a handgun for self-defense.”
Lawyers for the group say the text of the Second Amendment, along with history and tradition, supports their argument that there’s a right to carry a gun outside the home. The group also says that New York’s law has discriminatory origins, that it was originally intended to give officials wide latitude to keep guns out of the hands of newly arrived immigrants from Europe, particularly Italians.
New York counters that claim and states that the Second Amendment permits states to limit the public carrying of firearms. This too points to the Second Amendment text, history and tradition. It claims that its restrictions increase public safety. This is based on research showing that areas that limit the availability of firearms for public use have lower gun-related deaths and violent crime rates. New York says its law isn’t a flat ban on carrying guns but a more moderate restriction.
Tom King, president of the New York State Rifle & Pistol Association, said in an interview that part of the problem with New York’s law is that the chances a person will get an unrestricted permit depend on whether he or she is in a rural or more urban area of the state.
Both gun rights and gun control advocates say that it’s unclear how broadly the court might be willing to rule and that they will be closely watching arguments for clues, particularly from the court’s three newest members.
The three appointees of former President Donald Trump — Neil Gorsuch, Brett Kavanaugh and Barrett — are conservatives but were not on the court when the justices last issued major gun rights rulings. However, gun rights advocates can be encouraged by their positive actions to date.
In 2011, as an appeals court judge, Kavanaugh argued in a dissent that the District of Columbia’s ban on semi-automatic rifles and its gun registration requirement were unconstitutional. He urged Kavanaugh to urge the court last year to consider another gun case, as he was worried that lower courts weren’t following Supreme Court precedent.
Gorsuch would, on his part, have ruled in favor of the case against 2020 guns that his co-workers tossed out. And Barrett, as an appeals court judge, wrote in a dissent that a conviction for a nonviolent felony shouldn’t automatically disqualify someone from owning a gun; she said her colleagues were treating the Second Amendment as a “second-class right.”
Gun control groups hope, however, that conservatives might still vote to uphold New York’s law. In a briefing to the court, a group of well-known conservatives including J. Michael Luttig (ex-federal appeals court judge) urged that the court do this. In a 7-4 vote, the judges of the 9th U.S. Court of Appeals rejected a challenge to Hawaii’s permit regulations earlier in this year. Circuit Court of Appeals rejected a challenge to Hawaii’s permit regulations. Conservative judge Jay Bybee wrote that a “review of more than 700 years of English and American legal history reveals a strong theme: government has the power to regulate arms in the public square.”
The court’s three liberal justices are widely expected to side with New York.
Depending on what the justices ultimately say, other states’ laws could also be affected. The Biden administration, which is urging the justices to uphold New York’s law, says California, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island all have similar laws. Connecticut and Delaware also have “may issue” laws, though they are somewhat different.