Today’s oral argument was heard by the U.S. Supreme Court in its largest Second Amendment case for over a decade. Nearly two hours of discussion and questions later, the Court appeared ready to at least recognize a Second Amendment right to conceal a weapon outside the home for self-defense. It was not clear whether the Court would accept a narrower or more expansive right in its final decision.
In issue: New York State Rifle & Pistol Association v. BruenIs it constitutional that a state law requires anyone who wants to be able to conceal a handgun in public must first prove to a local official that they have “proper cause”. The state states that a general desire to conceal a weapon in self-defense is sufficient for the requirement of the “proper cause” standard.
Justice Brett Kavanaugh appeared particularly disturbed by the level of discretion that this standard grants to local licensing officials. “That’s the main concern. Kavanaugh told Barbara Underwood (New York Solicitor-General) that this was the real concern. “With any Constitution right, it is the individual’s discretion. [licensing]That seems incompatible with an objective constitutional right, officer.” Kavanaugh then asked: “Isn’t that good enough? I live in violent areas and want to defend my self?”
Justice Amy Coney Barrett demanded Paul Clement’s explanation on what regulations would work under his approach. Barrett asked Clement how he would determine which places are considered sensitive if he conceded, as the historical record demands. Barrett stated that the main question is how the state can regulate fairly. We all agree that there must be regulations. But it could not always happen that historical precedents can be used to show the way.
Justice Clarence Thomas wanted to know if New York’s policy was not too simplistic for its many residents. Thomas stated to the state’s solicitor-general that while it’s easy to talk about Manhattan, forbidding guns being carried on New York University’s campus is another thing. Talking about New York’s rural upstate is another matter.
Clement appeared to admit that Thomas’ distinction between rural and urban would permit his clients who reside in the upstate New York area to win, while allowing the Court to avoid issuing an broader Second Amendment decision that could have an impact on gun control in New York City.
Kavanaugh’s emphasis on New York’s discretionary licensing system led to narrower wins for the Second Amendment. The Court could decide that constitutional rights are better than this discretionary state system and tell New York to start over.
A decision in New York State Rifle & Pistol Association v. Bruen It is anticipated that it will be completed by June 2022.