A 2013 rally outside the state Capitol in Albany, protesting passage of the New York Secure Ammunition and Firearms Enforcement Act, otherwise known as the SAFE Act.
The U.S. Supreme Court heard oral arguments in the New York State Rifle & Pistol Association, Inc. v. Bruen case, regarding Americans’ ability to carry concealed, loaded firearms in public spaces with no “proper cause” requirements.
The state of New York requires a person to show a special need for self-protection to receive an unrestricted license to carry a concealed firearm outside the home.
Two upstate men — Robert Nash and Brandon Koch, both of Rensselaer County — challenged the law after New York rejected their concealed carry applications based on failure to show “proper cause.”
A district court dismissed their claims, and the U.S. Court of Appeals for the Second Circuit affirmed.
The question at hand for the U.S. Supreme Court is whether New York’s law requiring that applicants for unrestricted concealed carry licenses demonstrate a special need for self defense violates the Second Amendment?
Although difficult to predict the outcome of the case, it was clear from the line of questioning that the conservative justices are in favor of loosening the current gun laws, deeming that having to prove “proper cause” is unconstitutional.
The arguments lasted for more than two hours.
Nash and Koch, both applied for a concealed-carry license for the purpose of self defense. They were not approved by the licensing officer to get an unrestricted license because neither of them met the “proper cause” criteria for unrestricted public carry, leading them to file a suit in federal court claiming a violation of their Second Amendment rights.
In the landmark case, District of Columbia v. Heller, the Supreme Court ruled that ordinary citizens have the right to own firearms — not just for the purpose of a militia — but for any lawful purpose such as personal protection and hunting.
The court ruled in that 2008 case that banning handguns, an entire class of arms that is commonly used for protection purposes, and prohibiting firearms from being kept functional in the home, the area traditionally in need of protection, violates the Second Amendment.
Yet this individual freedom to own a firearm comes with certain conditions and restrictions, even if the intent to become licensed is based on the need for self defense.
The case New York State Rifle & Pistol Association, Inc. v. Bruen proposes a new challenge to the New York state law which requires anyone applying for a license to possess a handgun in public to demonstrate “proper cause” before they are allowed to do so.
In order for an applicant to be allowed to carry a concealed firearm outside of their home, the licensing officer, typically a county sheriff, would have to determine if their need to carry a gun is sufficiently heightened and considered special or unique. According to the United States Supreme Court brief, “an applicant must show a self-defense need that is ‘actual and articulable,’ as opposed to ‘speculative or specious.’”
Speaking broadly, in New York state, self defense is not enough reason to be permitted to carry a concealed weapon unrestricted anywhere on the streets. For example, carrying a concealed gun “may be restricted to specific locations where a person has shown a need for self-defense, such as ‘between [his] home and his place of employment.”
If one cannot demonstrate “proper cause,” the licensing officer can then grant the applicant a “restricted” license, which would only allow the applicant to possess a handgun for certain objectives under specific parameters, such as hunting.
This case has the potential to radically reduce the level of control the government has over regulating guns, allowing for an increase in firearms in public places.
The main point made by Paul Clement, a lawyer for petitioners Nash and Koch during the oral arguments was that “carrying a firearm outside the home is a fundamental constitutional right. It is not some extraordinary action that requires an extraordinary demonstration of need.”
The arguments addressed the concern about where carrying guns could be restricted for the overall safety of the public. These places are referred to as “sensitive.” Questions arose as to whether or not it was a good idea to allow the unrestricted, concealed carry of a gun in places such as bars, football stadiums or on school property.
“Probably the right way to look at those cases would be to look at them case by case and say, ‘OK, this court in Heller, for example, said sensitive places include government buildings and schools. I think those, you can probably tap into a pretty good tradition,” Clement responded.
Clement also went on to suggest that carrying concealed and loaded firearms could be restricted based on certain events, not only in places deemed “sensitive.” For instance, he states that “the right way to think about limiting guns in Times Square on New Year’s Eve is not as a sensitive place but as a time, place, and manner restriction.”
“You have to show that you have an atypical need to exercise the right that distinguishes you from the general community. That describes a privilege. It does not describe a constitutional right. That is a sufficient basis to invalidate the law,” Clement said.
“The idea that you would need a license to exercise a right is unusual with regard to the Bill of Rights,” Chief Justice John Roberts said.
The conservative side of the courtroom continued to posit that self defense is more than enough reason to carry a concealed firearm, as long as good moral character is displayed. They argued that restricting that ability directly infringes on Second Amendment rights.
“Why isn’t it enough to say, ‘I live in a violent area and I want to defend myself?’” asked Associate Justice Brett Kavanaugh during the arguments.
On the opposing side, some groups closely watching the case argued that some people will feel silenced as a direct result of the intimidation and fear of potential gun violence, infringing on their First Amendment rights to exercise free speech.
The widespread and unregulated presence of guns in public spaces can infringe on citizens’ rights to assemble, protest, and speak out, and states should regulate free carry to ensure trust that people can voice their opinions without having to worry about getting shot, said ACLU Legal Director David Cole in a press release regarding the New York Civil Liberties Union and the American Civil Liberties Union’s amicus brief.
New York’s Solicitor General Barbara Underwood, representing the respondents, argued that “New York’s law fits well within that tradition of regulating public carry… New York is not an outlier in the extent to which the state restricts the ability to carry firearms in public, and it’s not an outlier in asking a licensed applicant to show good cause for a carry license.”
Underwood went on to argue that unrestricted permits are more likely given to those who reside in less populated areas, and noted that Nash and Koch live in an intermediate area, close to the city of Albany.
In regards to ideas on “sensitive place” restrictions, Underwood stated that “you end up having a very big difficulty in specifying what all the places are that have the characteristics that should make them sensitive. In principle, it has an attractive quality to it, but, in implementation, I think it would be unsuccessful.”
Questions arose regarding the safety of open carry in rowdy settings.
“I think that people of good moral character who start drinking a lot and who may be there for a football game or — or some kind of soccer game can get pretty angry at each other. And if they each have a concealed weapon, who knows? And there are plenty of statistics in these briefs to show there’s some people who do know, and a lot of people end up dead,” said Justice Stephen Breyer.
The main arguments included the overall safety of the public, and the respondents concluded that unrestricted open carry not only puts the general public at potential risk but law enforcement as well.
“The concern behind the New York law — which is the concern that having more guns on the street does escalate, does complicate and increases the danger inherent in citizen-law enforcement encounters,” said Brian Fletcher, solicitor general for the United States.
The court is expected to issue an opinion this spring.
