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Supreme Court Hears Arguments in Biggest Second Amendment Case in Over a Decade

By Laura Temme, Esq. on November 08, 2021 9:35 AM

Last week, the Supreme Court heard oral arguments in New York Rifle & Pistol Association v. Bruen, a case that put New York's concealed weapons restrictions in the crosshairs. Arguably the most significant Second Amendment challenge in over a decade, the case could have major consequences for state regulation of concealed carry permits.

The court has hesitated to weigh in on gun rights since its landmark 2008 decision in District of Columbia v. Heller. In Heller, the court held that the Second Amendment protects an individual's right to possess and carry weapons for self-defense. In 2010, the court's decision in McDonald v. City of Chicago extended the Heller ruling to the states. Since then, lower courts have tried to determine what types of firearms restrictions are constitutional under Heller.

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Plaintiffs Seek Concealed Carry Without Restrictions

New York's statute allows people to obtain concealed carry licenses for self-defense if they show "proper cause." In general, the licenses are restricted to hunters and people who can show they have a concrete need for self-protection. Examples of such people include store owners and bank messengers; a general desire for self-defense is not enough to classify as a "concrete need."

Robert Nash and Brandon Koch, the two plaintiffs represented by New York State Rifle and Pistol Association, were denied concealed carry licenses because they failed to establish proper cause. They were, however, granted restricted licenses to carry handguns for certain activities outside their homes—such as hunting and target shooting.

The plaintiffs' primary argument is that New York's regulatory scheme denies most people the right to carry a concealed weapon. Though Justice Breyer pointed out during oral arguments that New York grants hundreds of thousands of concealed carry licenses, the plaintiffs take issue with being denied "unrestricted" concealed carry licenses.

Paul Clement, attorney for the plaintiffs, argued that New York's law is "upside down" in his brief to the court. "The Second Amendment makes the right to carry arms for self-defense the rule, not the exception, and fundamental rights cannot be left to the whim of local government officials."

After Clement conceded that some public areas, such as university campuses, could be considered "sensitive places" where the state could ban weapons, Chief Justice Roberts pressed him about what sort of restrictions might be appropriate in the plaintiffs' view. Clement answered that such restrictions should be analyzed on a case-by-case basis.

New York Argues Densely Populated Areas Should Have Fewer Concealed Carry Licenses

Despite their thorough questioning of Clement, the court's conservative justices seemed skeptical of the law's validity. They focused on the issue of whether what Justice Kavanaugh called an "objective constitutional right" can be left up to the discretion of an individual officer. Forty-one states, known as "shall issue" jurisdictions, require local officials to grant concealed carry licenses if an applicant meets a basic set of requirements.

New York Solicitor General Barbara D. Underwood, representing the state, focused on an area's population density as determinative of whether concealed carry licenses should be issued. She based this on the theory that multiplying the number of firearms in densely-populated areas brings a much higher risk "that mistakes will be made, fights will break out."

Justice Thomas pointed out that the government's emphasis on high-density areas implies that the more rural an area is, the more readily available unrestricted concealed carry licenses will be.

Chief Justice Roberts pressed her to explain the government's logic further. "How many muggings take place in the forest?" he asked. "If the purpose of the Second Amendment is to allow people to protect themselves, that's implicated when you're in a high-crime area. It's not implicated when you're out in the woods."

Justice Kavanaugh asked Underwood why "isn't it good enough to say I live in a violent area and I want to be able to defend myself?" He added that he had not seen any "real evidence" that states with less stringent concealed carry statutes saw a spike in gun crime:

"Before you impose more restrictions on individual citizens and infringe on their constitutional right based on this theory," Kavanaugh said, "you should have to show, well, in those other states that have shall-issue regimes, actually there's more accidents, crime."

The court is expected to issue a ruling by summer 2022.

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