Live updates: Supreme Court hears conceal carry gun rights case - The Washington Post
In a spirited discussion, the Supreme Court on Wednesday reviewed a challenge to New York State’s gun restrictions, a case with broad implications for other states that restrict the ability to carry loaded, concealed firearms in public places. It is the first major Second Amendment case before the court in more than a decade.
Gun owners in New York must obtain a special license from local authorities to carry firearms outside the home, showing “proper cause” for needing to do so. Seven other states — California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island — have similar laws.
Several justices asked New York’s lawyer about limiting the right to carry firearms for self-defense in dangerous neighborhoods or while jogging at night, while others expressed concern about the proliferation of guns in highly populated areas.
Justices also pressed the gun owners’ lawyer about whether state lawmakers could limit the carry of firearms on college campuses, at football stadiums and in bars, with Justice Stephen G. Breyer warning of the possibility of “gun-related” chaos.
- It’s been 13 years since the court’s conservative majority, on a 5-4 vote, declared an individual right to gun ownership in the landmark case District of Columbia v. Heller. An even more conservative court agreed to hear this dispute, New York State Rifle & Pistol Association v. Bruen, after multiple justices have said that the court needs to more clearly define the rights first acknowledged in 2008. Justices Brett M. Kavanaugh and Amy Coney Barrett, in particular, are seen as pivotal to the case’s outcome.
- Gun owners Robert Nash and Brandon Koch say New York’s law is at odds with the Second Amendment by giving government officials too much discretion. The men have licenses to carry firearms for hunting and target practice, but authorities denied their requests for “unrestricted” licenses — saying they failed to show a “special need for self-protection.” Nash and Koch are joined in their suit by the New York State Rifle & Pistol Association, an NRA affiliate.
- New York officials have warned that striking down the law would jeopardize other government gun restrictions intended to safeguard subways, airports, houses of worship and bars, among other places.
Chief Justice John G. Roberts Jr. pointed out that constitutional rights do not have to be justified, such as the Second Amendment right to bear arms. “The Constitution gives you that right,” Roberts said. “And if someone’s going to take it away from you, they have to justify it.”
Brian H. Fletcher, the principal deputy solicitor general arguing in support of the New York law, said: “The whole question is whether the Second Amendment right to keep and bear arms confers that right to have a pistol with you for self-defense. Even absent a showing of demonstrating need.”
Roberts responded: “I’m not sure that’s right. I mean, regardless of what the right is, it would be surprising to have it depend upon a permit system. You can say that the right is limited in the particular way, just as First Amendment rights are limited. But the idea that you need a license to exercise the right, I think is unusual in the context of the Bill of Rights.”
Fletcher noted that many states previously had laws requiring gun owners to show a need to carry a gun publicly: “The laws, of which New York is one but by no means the only example, that began to become more prevalent in the 20th century said, we’re going to make that determination of need ex ante. We’re going to require a showing of good cause. New York has done that for a century.”
“I think there’s a lot of support historically and otherwise for it, so I’m quite content to treat it as rightly decided,” Underwood said. “I think there was an argument on the other side, too, but that’s true about … most of the difficult questions that come before this court. I have no quarrel.”
“Mr. Clement has pointed out that, in some respects, the way that we treated, say, the Statute of Northampton, is different from the way that you argue that we should interpret that, and … you know, statutes in the colonies,” Barrett said. “You argue that we should understand those and some other cases differently than we did in Heller. Are we free to do that?”
“In the course of arriving at that decision, [the court] necessarily said a lot of other things that led to that decision, but I don’t think they are controlling,” Underwood said. “I think the opinion itself says we’re not trying to do a full exegesis of the whole Second Amendment right.”
Underwood said it would be odd and inconsistent with general practice to treat every sentence or every reference to a historical source as “controlling for all time as distinguished from the purposes for which it was invoked.”
Justice Samuel Alito raised the issue of everyday self-defense on the streets of New York. “Could I explore what that means for ordinary law-abiding citizens who feel they need to carry a firearm for self-defense?” Alito asked.
Underwood answered, “Because the core right to self-defense doesn’t, as this court said, doesn’t allow for all to be armed for all possible confrontations in all places.”
″There are a lot of armed people on the streets of New York and in the subways late at night right now. Aren’t there?” Alito asked. “All these people with illegal guns, they’re on the subway, they’re walking around the streets. But the ordinary, hard-working, law-people I mentioned, no they can’t be armed.”
Underwood responded, “The idea of proliferating arms on the subway is precisely, I think, what terrifies a great many people. The other point is that proliferating guns in a populated area where there is law enforcement jeopardizes law enforcement, because when they come, they now can’t tell who’s shooting and the shooting proliferates and accelerates. And in the end, that’s why there is a substantial law enforcement interest in not having widespread carrying of guns on the subway.”
Several times Wednesday, Kavanaugh expressed concern about the broad discretion given to government officials to determine which New York residents qualify for licenses to carry guns in public places. He asked the state’s lawyer why it was not sufficient for applicants to show, for instance, that they live in a high-crime neighborhood or go jogging at night.
“Well, that’s the real concern, isn’t it, with any constitutional right. If it’s the discretion of an individual officer, that seems inconsistent,” Kavanaugh said.
He went on to ask the state’s lawyer whether there was any evidence of higher crime rates in other states that permit residents to carry guns outside the home without presenting a specific justification.
Attorney Barbara Underwood said such a system would lead to a higher number of firearms in the state, including in highly populated areas, and a greater risk that “mistakes will be made, fights will break out.”
“It seems like before you impose more restrictions on individual citizens and infringe our constitutional rights based on this theory, you should have to show” that those other states have “a lot more accidents, crime, and I don’t see any real evidence of that,” Kavanaugh said.
Chief Justice John G. Roberts Jr. asked New York solicitor general Barbara Underwood why New York’s understanding of the law makes unrestricted gun permits more readily available in less populated areas.
“Heller relied on the right to defense as a basis for its reading of the Second Amendment,” Roberts said. “I would think that arises in more populated areas. If you’re out in the woods, it’s pretty unlikely that you’re going to run into someone who’s going to rob you on the street.”
On the other hand, Roberts added, it is “more likely” that an individual would need a gun for self-defense in places that are more densely populated, like cities.
“It seems to me that, what you’re saying, is that’s probably the last place that someone’s going to get a permit to carry a gun,” Roberts said. “How is that, regardless of what we think of the policy, how is that consistent with Heller’s reasoning that the reason the Second Amendment applies a direct personal right is for self-defense?”
“One, if you go right to history and tradition, the history was to regulate most strenuously in densely populated places. That’s what fairs and markets are. So we have history,” she said. “But we also have a rationale for that history, which is that where there is dense population, there is also the deterrent of lots of people and there is the availability of law enforcement.”
“These regulations are all an effort to accommodate the right to recognize and respect the right of self-defense while regulating it to protect the public safety,” she said. “The risks of harm from people who are packed shoulder to shoulder, all having guns, are much more acute.”
Underwood noted then that, when one is out in the woods, there’s a different set of problems relating to self-defense. There’s often no law-enforcement officer there who could help an individual.
“I take your point that there’s a different risk in the city, but there’s also a different public safety consideration,” Underwood said. “And that is why the licensing officer is meant to take into account not just the risk, but also the population and the availability of law enforcement.”
Though 43 states have gun laws that say governments “shall issue” permits to those seeking to carry guns openly, New York state law requires local authorities to determine that the gun owner has “proper cause” for doing so.
The justice said: “We should focus on American law and the text of the Constitution, and we don’t start the analysis in a vacuum. We started with the text, which you say grants the right to carry and then historical practice can justify certain kinds of regulations. But the baseline is always the right established in the text.”
Chief Justice John G. Roberts Jr. and Justice Elena Kagan both asked petitioners’ lawyer Paul Clement whether the government could restrict guns in certain places open to the general public. “Could they say you’re not allowed to carry on a university campus?” Roberts asked.
But when Roberts asked whether the state could restrict guns in places that serve alcohol, Clement said each case would have to be looked at individually, to determine whether it met the criteria set out in the Heller case for “sensitive places, to include government buildings and schools. … I think any place that served alcohol would be a tougher case for the government.”
“I think there’s two principles,” Clement replied. “Restriction of access to the place is something that I think would be consistent with the way government buildings have worked and schools have worked. Not any member of the general public can come in there. They restrict access … with or without a gun. If you’re an adult that has no business to be in a school, you’re excluded. So I think that’s a factor that would support treating that as a sensitive place.”
Clement also argued for an analogy to the First Amendment, “which is you start with the place and you try to understand, is this a place where, given the nature of the place, its function, its restrictions on access, that weapons are out of place? And if so, that’s probably a sensitive place.”
“I think that the question of whether you could restrict arms in the subways,” Clement said, “you’d have to go through the analysis, I think, and say, you know, is there a restriction on access?” He said his clients wouldn’t necessarily oppose New York subway restrictions because they don’t live in Manhattan.
Justice Neil M. Gorsuch, who is participating in the oral arguments from home, asked attorney Paul Clement to put aside his case for a moment to talk about other cases that touch on licensing for individuals who want to carry guns outside the home. Gorsuch said a number of amicus briefs filed on behalf of Clements’s case have touched on the need to provide further guidance on gun licensing to lower courts.
Some of these briefs, Gorsuch said, “pointed out that some lower courts have refused to apply the history test, for example, and said they will not extend Heller outside the home until this court does.” Gorsuch said he was curious about Clement’s views on this.
“I think we would start with the idea [that] the text history and tradition is an appropriate way to deal with this, right?” Clement said. “That’s what the court said in Heller.”
“Probably the single most important thing to remind the lower courts is that intermediate scrutiny requires narrow tailoring, and a law like this that takes a person who has no proclivity whatsoever … and says you simply can’t carry [guns] for self-defense anywhere frequented by the public because you haven’t demonstrated an atypical need, I mean, that’s about as untailored law as I can imagine,” Clement said.
When Justice Elena Kagan asked attorney Paul Clement how the court should define who actually gets a gun license, Clement noted that current gun laws should be shaped by more modern precedents, dismissing, in part, historical decisions.
“I think some of those laws in their current form took that shape in the 1920s, but I also think there was a tradition from the beginning for keeping certain people outside of the group of people that were eligible for possession of firearms,” Clement said. “I think really there are two reasons to at least be skeptical of post-1871 history. I mean, the first is, I just don’t really understand why it’s terribly relevant in forming the original public meaning of the Constitution. But of course, the second reason is, it’s just about that time that the collective rights view started to creep into the decisions of some state supreme courts.”
“New York says we have about 90,000 licenses to carry concealed weapons, or maybe it’s 40,000 or maybe it’s 10,000. But there’s been no trial. There’s been no proceeding. All it is, is dismissal,” he said. “So how are we supposed to find out, A, what the history is? Which is my minor question, really, there’s a lot of debate on that. But second, how are we supposed to know what we’re talking about in terms of what New York does and what they say?”
That is at the crux of the issue, Clement said, noting that there was no “serious question” about the experience of his clients, who were denied the unrestricted licenses they sought, “notwithstanding that they satisfy every other requirement that the state has to be licensed for concealed carry,” and that they were denied their confrontation rights.
“The way your brief is written is to say, you know, this is a regulatory scheme that deprives most people of the right to carry arms in self-defense. And your brief puts a lot of emphasis on that,” she said, saying Clement appeared to be arguing that individuals shouldn’t “believe the state that they’re going to really take seriously people’s need for self-defense because they always reject these licenses.”
“You know, if you had a bunch of statistics which suggests that the state is quite sensitive to people’s need for self-defense, and gives these licenses a significant amount of the time, you might think differently about the regulatory scheme, wouldn’t you?” Kagan asked.
Clement said he wouldn’t “feel any differently with respect to my two individual clients who were denied their right to exercise their Second Amendment rights.”
In the first question of the session, Justice Thomas asked the petitioners’ lawyer Paul Clement for an analogy in gun regulation history that would enable the court to analyze today’s case in a Second Amendment context. “Can you give me a regulation in history,” Thomas asked, “that is a base that will form a basis for legitimate regulation today?”
Clement, of course, opposes regulation today. “I suppose if you’re going to reason by analogy,” Clement said, “then you could go back and you could find analogous restrictions relatively early in our nation’s history about prohibiting certain types of firearms or having firearms in, or any weapon really, in certain sensitive locations.”
But Clement quickly shifted. “I think the reasoning works the opposite direction, which is you typically have a baseline right to carry for self-defense,” Clement said. He said some post-Civil War Reconstruction laws “purported to eliminate any right to carry openly or concealed. And those laws were essentially invalidated by every court that was applying an individual rights view of the Second Amendment. And those decisions of court were exhaustively considered by this court in Heller,” the 2008 Supreme Court ruling clarifying the right to possess a gun in the home.
Thomas asked whether the justices should consider the law based on when the Second Amendment was written, or when the 14th Amendment was written after the Civil War.
“I think for this case and for Heller,” Clement said, “and I think for most of the cases that will arise, I don’t know that the original founding history is going to be radically different from that at Reconstruction. But I guess what I would say is I do think that’s about where it stops, because the point here isn’t to look at history for the sake of studying history. The point is to look at the history that’s relevant for understanding the original public meaning of the Second Amendment and the 14th Amendment.”
New York officials have turned that right, attorney Paul Clement said, into a privilege that can only be enjoyed by those who demonstrate to government officials that they have an “atypical need” to exercise that right.
After a year of conference calls, the court returned to in-person hearings in October, but its doors remain closed to the public because of the pandemic. Only the justices, lawyers, journalists and essential personnel are allowed into the courtroom.
Justice Clarence Thomas is likely to ask the first question on Wednesday, as he has done since the justices returned to the courtroom last month after the coronavirus-imposed shutdown.
He has been among the conservative justices who have expressed frustration when the court has repeatedly turned down requests to examine laws that impose tough restrictions for carrying guns outside the home or ban certain types of weapons.
More recently the court declined in June 2020 to take up nearly a dozen cases that gun rights groups hoped the justices might consider. Those cases involved restrictions in Maryland and New Jersey that are similar to the New York law at issue Wednesday.
Thomas objected, writing, “This court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights. And it seems highly unlikely that the court would allow a state to enforce a law requiring a woman to provide a justifiable need before seeking an abortion.”
“But today, faced with a petition challenging just such a restriction on citizens’ Second Amendment rights, the court simply looks the other way,” wrote Thomas, who was joined in part by Justice Kavanaugh.
source: https://www.washingtonpost.com/national-security/2021/11/03/supreme-court-gun-rights-live-updates/
Your content is great. However, if any of the content contained herein violates any rights of yours, including those of copyright, please contact us immediately by e-mail at media[@]kissrpr.com.