Conservative justices armed with a new interpretation of the Second Amendment take aim at New York\u2019s concealed-carry policy.<\/b>
\nNew Yorkers should get used to having a lot more guns on the street. That\u2019s the takeaway from Wednesday\u2019s oral arguments in the Supreme Court case of New York State Rifle & Pistol Association v. Bruen. The Court\u2019s conservative majority appears ready to strike down New York\u2019s policy of issuing \u201cconcealed carry\u201d permits only to people who show that they need a gun for self-defense. Only the Court\u2019s three remaining liberals seemed prepared to defend New York\u2019s 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\u2019t 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 \u201cright of the people to keep and bear arms\u201d contingent on a special reason, but it\u2019s also contingent on the discretion of local officials. At oral argument, New York\u2019s 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, \u201cthey don\u2019t get a license?\u201d \u201cIf there\u2019s nothing particular to them,\u201d replied Underwood, \u201cthat\u2019s right.\u201d 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 \u2014 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\u2019 concealed carry of weapons entirely. But thanks to decades of lobbying by gun manufacturers and the NRA, legal history was changed in 2008, and advocates of gun control now have to deal with it. Second Amendment rights exist, and with this conservative-dominated Court, they\u2019re only going to expand. There is plenty of irony \u2014 some would say hypocrisy \u2014 in this state of affairs. Only, history is messy. During two hours of oral argument, the justices and lawyers offered competing examples from history of guns being regulated, guns being allowed, and everywhere in between. They debated whether ancient precedents (dating from 1350!) are essential or irrelevant. Everybody had points on their side. As Justice Sotomayor asked the attorney for the individuals challenging the law, the renowned Supreme Court litigator Paul Clement, \u201cHow do I get past all these various histories without you just making it up?\u201d But the alternative to \u201ctext, history, and tradition\u201d is the Court balancing state and private interests, which is what constitutional law used to be about until so-called \u201c originalism\u201d became so dominant. Yes, there\u2019s a right to bear arms, but no right is unfettered. So how much fettering is too much? Could New York ban guns on the subways, but not on the streets? Must the state treat New York City differently from Rensselaer County, where one of the challengers lived? These questions are precisely what originalism was meant to avoid, but ultimately, there was no getting around them. There was even an extended debate, with audible laughter in the background, about whether New York University has a campus or not \u2014 and thus whether guns could be banned from there as well. (No word yet from NYU officials.) Then there\u2019s states\u2019 rights. Normally, conservatives love states\u2019 rights, which is why, over the last century, they\u2019ve argued that states should be allowed to maintain segregation, ban abortion, stop people of color from voting, and criminalize being gay. Here, however, despite the obvious fact that states have all sorts of reasons for balancing safety and liberty in different ways, conservatives seek to take some options \u201coff the table,\u201d in the words of Brian Fletcher, the deputy solicitor general, who argued the case for Justice Department. Fletcher acknowledged that, in the exchange with Underwood, \u201cJustice Alito made a powerful argument for why a different regime might be preferable.\u201d But, Fletcher said, \u201cNew York should be allowed to make the choice that it has made.\u201d It won\u2019t be. Justices Thomas, Alito, Gorsuch, and Kavanaugh were clearly disposed to strike down the law, with Gorsuch and Kavanaugh inquiring mainly about how best to do it. Chief Justice Roberts tipped his hand as well, saying that \u201cthe Second Amendment is to be interpreted the same way as other provisions. You don\u2019t have to say you have a special reason to exercise the right \u2014 [the state] has to say why you can\u2019t.\u201d Even if Justice Barrett \u2014 who, interestingly, has equivocated about the scope of the Second Amendment in the past \u2014 parts company with her fellow conservatives, that\u2019s five votes in favor of striking down the law. (Justice Breyer seemed inclined to remand the case for more factual findings, with Justices Sotomayor and Kagan inclined to affirm the law as consistent with America\u2019s history of regulating gun possession.) The question will be one of extent \u2014 and here there is, perhaps, some cause for liberals to hope. Justice Kavanaugh seemed content with a permitting regime where states \u201cshall issue\u201d permits rather than \u201cmay issue\u201d them, removing the issue of discretion and the need for a showing of special circumstances. If Justice Barrett agrees with him, that would entail striking down New York\u2019s law on a very narrow basis rather than a very broad one. And that would be a setback rather than a disaster. Which, with this Court, counts as good news.<\/p>\n