Supreme Court revisits Second Amendment with challenge to New York concealed-gun restrictions
Image from Shutterstock.
When two residents of upstate New York sought unrestricted licenses to carry concealed weapons for self-defense outside the home, officials denied their applications under the state’s demanding standard for such permits. Those relatively routine administrative actions have teed up the most important Second Amendment case to be heard by the U.S. Supreme Court in more than a decade.
“The recent string of robberies in the area has prompted me to go ahead and ask for this request,” Robert Nash, one of the applicants, wrote to his local New York state gun licensing official in 2016 as he sought to upgrade his license to carry firearms for hunting and target practice to one allowing concealed carry for self-defense.
Brandon Koch, a technology worker for the New York state court system, made a similar request in 2017, noting in a letter that he already had nonresident concealed-carry permits in four states that effectively permitted him to carry a gun in 33 states.
“I understand fully the immense responsibility as well as the possible ramifications of carrying a firearm concealed on my person for lawful purposes,” Koch wrote. “The use thereof must only be as an absolute last resort.”
The state licensing officials turned down both applicants’ requests. An official wrote to Koch to to remind him that the restrictions on his license did allow him “to carry concealed for purposes of off road back country, outdoor activities similar to hunting, for example fishing, hiking and camping. And you may also carry to and from work.”
Another official responded to Nash, also mentioning the scope of outdoor activities for which he could carry a weapon, though Nash was not authorized to carry a concealed gun to and from work.
“I emphasize that the restrictions are intended to prohibit you from carrying concealed in any location typically open to and frequented by the general public,” the official wrote.
A ‘nonspeculative’ need to carry a gun
The Supreme Court hears arguments Wednesday in New York State Rifle & Pistol Association Inc. v. Bruen. The simply stated question presented in the case—whether New York’s denial of concealed-carry permits to Nash and Koch violates the Second Amendment—cloaks more than a decade of angst among gun-rights supporters seeking greater clarity from the justices about the scope of the amendment’s “right of the people to keep and bear arms.”
“The court has decided to grant what I think is really the issue that a lot of court watchers who care about the Second Amendment have been hoping that the court would review for a number of years,” Paul D. Clement said at a Heritage Foundation panel on the Supreme Court term in late September. The Kirkland & Ellis partner represents Nash, Koch and the state group, which is the New York affiliate of the National Rifle Association.
Clement said about a dozen states strictly limit the right of individuals to carry weapons. “New York’s regime is very typical, which is, essentially, you cannot engage in any open carry of firearms, and you can’t engage in concealed carry of firearms unless you have a license,” Clement said. “And it is virtually impossible to get a license.”
To obtain a concealed-carry license under the laws of New York and the other restrictive states, Clement said, “You have to show to the satisfaction of a government official a justification for carrying that essentially distinguishes you from the average person. You have to show a various special need. … That doesn’t seem to sit very comfortably with a constitutional right that is protected to all the people.”
New York disputes that it is difficult for everyone to get an unrestricted license. In a footnote in its merits brief, the state declares that in a two-year period, 2018-19, at least 65% of applicants for an unrestricted license received one, totaling some 37,800 statewide during that period.
“Nash and Koch did not receive unrestricted licenses because neither demonstrated a nonspeculative need to carry a handgun virtually anywhere in public,” says the brief, signed by New York Attorney General Letitia James.
New York adopted its “Sullivan Law” (named after a state senator) in 1911 and set standards for granting gun licenses in 1913. As amended and interpreted by the courts, the law authorizes certain residents—such as judges, correctional employees, and bank messengers—to have concealed-carry licenses automatically based on their jobs. Others must show proper cause. That includes licenses restricted to target practice and hunting or to carrying to and from work.
When an applicant seeks an unrestricted carry license, a local licensing official “assesses whether the applicant has a nonspeculative reason to believe that he or she will encounter objective circumstances justifying the use of deadly force under New York law,” the state says in its brief. The standard is higher in densely populated New York City, where city regulations require applicants to demonstrate “extraordinary personal danger, documented by proof of recurrent threats to life or safety.”
Accepting the challengers’ arguments that New York’s restrictions violate the Second Amendment “would break with seven centuries of history and have devastating consequences for public safety,” says the state’s brief. It reaches back to a 1328 English law, the Statute of Northampton, which provided that “no man great nor small” could “go nor ride armed by night nor by day, in fairs, markets,” or “elsewhere,” on pain of imprisonment and forfeiture of arms. (President Joe Biden’s administration, supporting New York, says the first English weapons-control measure was enacted in the year 600 A.D.)
“History shows that local officials have long had wide latitude to decide where and under what circumstances firearms could be carried in public, and to restrict the carrying of concealable firearms, particularly in populous areas,” the state says.
The ABA filed an amicus brief on behalf of the state, asking the court to affirm its previous position allowing states to regulate the carrying of weapons based on local conditions and needs.
Court agrees to hear case after ‘shifts in personnel’
The New York case may resolve some of the questions left open by the court’s landmark 2008 District of Columbia v. Heller decision, which recognized an individual right to possess guns but said it was not casting doubt on laws forbidding the carrying of firearms in sensitive places such as schools or government buildings.
The high court’s 2010 decision in McDonald v. City of Chicago incorporated the Second Amendment against the states and reaffirmed that “individual self-defense is ‘the central component’ of the Second Amendment right,” and that “citizens must be permitted ‘to use handguns for the core lawful purpose of self-defense.’”
And then not much happened at the high court on the Second Amendment for a decade, as the justices passed up numerous opportunities to review lower-court rulings that had interpreted Heller narrowly.
In 2020, Justice Clarence Thomas wrote a dissent when the court declined to review a case challenging New Jersey’s standards for concealed-carry permits.
“In several jurisdictions throughout the country, law-abiding citizens have been barred from exercising the fundamental right to bear arms because they cannot show that they have a ‘justifiable need’ or ‘good reason’ for doing so,” Thomas wrote in Rogers v. Grewal, joined by Justice Brett M. Kavanaugh. “One would think that such an onerous burden on a fundamental right would warrant this court’s review.”
(Thomas, in a section not joined by Kavanaugh, said he believed the case presented “opportunity to clarify that the Second Amendment protects a right to public carry.”)
Many observers believe the court’s conservatives were reticent to take up a major Second Amendment case until the death of Justice Ruth Bader Ginsburg in 2020 and her replacement by Justice Amy Coney Barrett, whose record suggests support for Second Amendment rights.
“I do think this will be an interesting case to kind of see the new dynamic on the Supreme Court,” Clement said at the Heritage Foundation event, in a bit of self-conscious understatement. “I think the fact that the court has taken the case probably does reflect some of the recent shifts in personnel.”
On Oct. 26, Georgetown University Law Center hosted a lively debate on Zoom about the case.
“I don’t think the Supreme Court will take on its shoulders the responsibility of saying all those people who have moments of rage or political protest … are constitutionally allowed to have, no matter what any legislature thinks, guns on their hips in all public places at all times,” said Richard Bernstein, a Washington, D.C., lawyer who helped write an amicus brief in support of the state on behalf of a group of former federal officials, including former federal appeals court judge J. Michael Luttig.
Robert Leider, a professor at George Mason University’s Antonin Scalia Law School who signed a brief in support of the challengers, said at the same event, “The New York Sullivan Law applies in all places and at all times. It applies from Times Square all the way to the mountainous areas of New York. And so the only thing that the court really has before it is whether there is a public carry right at all.”
