Conservative justices armed with a new interpretation of the Second Amendment take aim at New York’s concealed-carry policy.
New Yorkers should get used to having a lot more guns on the street. That’s the takeaway from Wednesday’s oral arguments in the Supreme Court case of New York State Rifle & Pistol Association v. Bruen. The Court’s conservative majority appears ready to strike down New York’s policy of issuing “concealed carry” permits only to people who show that they need a gun for self-defense. Only the Court’s three remaining liberals seemed prepared to defend New York’s law, which requires that a person establish their need for a gun before receiving a permit, with a local official (usually a judge) making the final decision. That, as several justices pointed out, is not normally how constitutional rights work. To exercise, say, the right to free speech, you don’t have to prove you have a special reason to say something; the state has to prove it has a special reason for stopping you. Here, not only is the “right of the people to keep and bear arms” contingent on a special reason, but it’s also contingent on the discretion of local officials. At oral argument, New York’s solicitor general, Barbara Underwood, disastrously fumbled a series of questions about this requirement. Justice Alito told a compelling hypothetical story about someone working late at night in Manhattan who commutes by bus or train, and then has to walk home alone in a high-crime neighborhood. But because their fears are only speculative, Justice Alito asked, “they don’t get a license?” “If there’s nothing particular to them,” replied Underwood, “that’s right.” Unless those first 13 words are just decoration, the Second Amendment right seems to be connected to militias, which, before the establishment of police forces and national guards, helped to keep the peace — and to put down slave rebellions, which appears to have been the real motivation for the amendment. And indeed, as New York and the Department of Justice showed in oral arguments, there were numerous examples of states (and colonies) banning individuals’ concealed carry of weapons entirely.
