The U.S. Supreme Court at dusk. (Joe Ravi, CC BY-SA 3.0, via Wikimedia Commons)
WASHINGTON — Conservative justices on the U.S. Supreme Court expressed skepticism Wednesday after listening to two hours of oral arguments on a New York law that imposes strict limits on carrying a gun outside the home — a case that will test how far states can go when crafting their own laws.
In New York State Rifle & Pistol Assoc. v. Bruen, attorney Paul Clement — former U.S. solicitor general in the Bush administration — argued that New York’s restrictive gun laws infringe on an individual’s Second Amendment right to keep and bear arms.
“Carrying a firearm outside the home is a fundamental, constitutional right,” he said in his opening presentation to the court.
Chief Justice John Roberts said he found it surprising that local officials could make decisions about a constitutional right. Several other members of the court expressed that sentiment, but also agreed that states could decide whether to exclude guns from “sensitive places” in New York such as public transportation, New York University, Columbia University and Times Square on New Year’s Eve.
Justices Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh expressed their concern about the high bar applicants needed to meet to obtain a gun permit.
Barbara Underwood, New York’s solicitor general, defended the state’s law, arguing that the state is not an outlier in its restrictions because states have used a variety of regulations over the years.
Some cities also place their own restrictions, such as Chicago and Baltimore.
“And it’s not an outlier in asking a licensed applicant to show good cause for a carry license,” she said.
Justice Elena Kagan said that the brief Clement submitted to the court focused on the argument that the New York law is a “regulatory scheme” that deprives most people of their right to carry a gun, rather than the two individuals who brought the case against New York.
Most states broadly grant requests to carry weapons outside the home except for California, New York, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, Connecticut and Rhode Island. Those states have wide discretion to deny an applicant a concealed carry permit.
In those states, about 1% of all residents are approved for concealed carry, compared to about 10% in other states with looser laws.
States with tougher standards generally require an individual to demonstrate a need for self-protection, referred to as “proper cause.” A general desire to possess a concealed carry gun is not a sufficient reason in those states.
The gun rights advocates who are challenging New York’s law, Robert Nash and Brandon Koch, had applications for a concealed-carry license denied, but were granted “restricted” licenses to carry a gun for target shooting and hunting.
This is the first gun rights case the Supreme Court has taken up in years.
In 2008, the Court ruled in District of Columbia v. Heller that the Second Amendment does allow an individual the right to have a gun in his or her home for the purposes of self defense. In 2010, the Court confirmed in McDonald v. City of Chicago that the states must adhere to that right.
Justice Sonia Sotomayor noted that based on history, states have put in place their own restrictions on guns.
“Those 43 states that you’re talking about, most of them didn’t give unrestricted rights to carry of one form or another until recent times,” she said. “Before recent times, there were so many different regulations. What it appears to me is that the history and tradition of carrying weapons is that states get a lot of deference on this.”
New Jersey Acting Attorney General Andrew Bruck also defended the need to show proof that an individual needs to carry a gun outside the home.
“New Jersey residents should be able to go to a shopping mall or sporting event without having to worry about whether the person behind them is secretly carrying a firearm for no good reason,” Bruck said in a statement.
“The Second Amendment has always allowed states to adopt common-sense restrictions on carrying a concealed firearm in public — to protect their residents. A Supreme Court decision striking down reasonable firearm licensing laws would pose a significant risk to public safety.”
The Pew Research Center found that about 3 in every 10 Americans own a gun and that men are more likely to own a firearm than women, from 39% of men to 22% of women.
Some of the most recent data for gun deaths found that there were 39,773 deaths from gun-related injuries in 2017. Pew found that about 60% of gun deaths were by suicide.
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