Jurisprudence

The Supreme Court Wants More Guns on the New York Subway

In a major Second Amendment case, the conservative justices empathized with “law-abiding citizens” who want to take guns everywhere.

Gabby Giffords and Eric Lundy at a podium in front of the Supreme Court. A sign reads: GUN LAWS SAVE LIVES.
Gabby Giffords and Eric Lundy speak as gun violence survivors gather in front of the Supreme Court on Nov. 3. Leigh Vogel/Getty Images

No need for suspense: The Supreme Court is going to force New York, and every other state, to issue concealed carry permits to any law-abiding citizen who requests one. The only question left, after oral arguments on Wednesday in New York State Rifle & Pistol Association v. Bruen, is whether the conservative supermajority will use sweeping language that casts doubt on the constitutionality of other long-standing restrictions on the right to bear arms. Based on the Republican-appointed justices’ biting questions, we can probably assume it will.

Advertisement

Bruen marks the first time the Supreme Court has considered public carry laws since it created an individual right to bear arms under the Second Amendment. In 2008’s D.C. v. Heller and 2010’s McDonald v. Chicago, the conservative majority held that the Constitution protects the right to keep a handgun “in the home” for self-defense. But what about outside the home? Most states already allow gun owners to carry concealed weapons in public. Seven states, including New York, do not. These states require residents to show “good cause”—that is, some heightened need for self-defense—to get a permit for concealed carry. About 83 million people, or roughly one in every four Americans, live in a “good cause” state. The lower courts have divided on the constitutionality of “good cause” laws, and SCOTUS took up Bruen to resolve the dispute.

Advertisement
Advertisement
Advertisement
Advertisement

The timing, though, is not a coincidence. Lower courts have been split over concealed carry restrictions for years, yet the Supreme Court did not step in until 2021—after Justices Amy Coney Barrett and Brett Kavanaugh had joined the bench. Barrett’s predecessor, Justice Ruth Bader Ginsburg, voted against gun rights, while Kavanaugh’s predecessor, Justice Anthony Kennedy, demanded language limiting the scope of Heller. Chief Justice John Roberts seemed eager to avoid Second Amendment cases, if only for fear of backlash. But his vote no longer matters with Barrett and Kavanaugh on the court. Both justices were chosen, in part, because of their past opinions endorsing a broad vision of the right to bear arms.

So when Paul Clement, arguing on behalf of the petitioners, began attacking New York’s “good cause” rule on Wednesday, the court promptly cleaved along partisan lines. The conservative justices mostly tossed softballs, while the liberal justices launched a fusillade of questions about the constitutional and practical consequences of his position. After Clement insisted that New York could still ban guns in “sensitive places,” Justice Elena Kagan (who once shot a deer while hunting with Antonin Scalia) pressed for examples: What about the New York City subway? The NYU campus? Crowded stadiums? Packed protests?

Advertisement

After Clement refused to answer these questions directly, Barrett jumped in with an assist. “Can’t we just say Times Square on New Year’s Eve is a sensitive place? Because now we’ve seen people are on top of each other, we’ve had experience with violence, so we’re making a judgment, it’s a sensitive place.” Clement agreed that this restriction “might be a perfectly reasonable time, place, and manner restriction.” But it’s pretty cold comfort if New York can only ban guns in one of the most crowded places in the world on its single busiest night, but perhaps that’s the best we can hope for from this 6–3 court.

Advertisement

Much of Clement’s argument derived from history, or rather a fantasy version of history that erases a vast record of stringent gun regulations from the colonial era through the ratification of the constitutional provisions that allegedly establish an individual right to bear arms. Thirteen years of research have demonstrated that Heller contains a multitude of errors that undercut its central claim. It’s too late to persuade the Supreme Court’s amateur historians that Heller was wrong. But, as Justice Sonia Sotomayor pointed out on Wednesday, the historical record also demonstrates that the right to carry a concealed weapon in public is not clearly rooted in American tradition, either. Sotomayor reminded Clement that many of the colonies “restricted concealed arms” before the Revolutionary War, and states maintained these bans following independence. And “after the Civil War, there were many, many more states” that granted “a right to arms but not concealed.”

Advertisement
Advertisement

“Many of the laws conditioned or retained the right of the state to decide which people were eligible” to carry concealed guns, Sotomayor said. “To carry the arms,” citizens “had to be subject to the approval of the local sheriff or the local mayor.” Why, she wondered, “is a ‘good cause’ requirement any different than that discretion that was given to local officials to deny the carrying of firearms to people that they thought it was inappropriate?” The best Clement could muster was that he didn’t “read” the “historical examples” the “same way” Sotomayor did.

Later, when principal deputy Solicitor General Brian Fletcher came to the lectern, he debunked Clement in brutal fashion: Fletcher identified laws in Tennessee, Texas, West Virginia, and Alabama, that imposed draconian restrictions on concealed carry in the 1800s. Justice Brett Kavanaugh tried to counter by asserting that residents could carry a gun openly, but he was wrong; as Fletcher explained, these laws banned both open and concealed carry. Justice Clarence Thomas retorted that Fletcher sought to “focus a lot on western states, but the West is different.” Again, nope: In addition to western states, Fletcher identified southern states like Arkansas and northern states like Massachusetts with historical analogs to New York’s law.

Advertisement
Advertisement
Advertisement

Frustrated with historical Whac-a-mole, Justice Samuel Alito took a simpler approach: bemoan the plight of the “ordinary law abiding citizens” denied their “right to self-defense.” His question to New York Solicitor General Barbara Underwood is worth quoting in full:

So I want you to think about people like this, people who work late at night in Manhattan, it might be somebody who cleans offices, it might be a doorman at an apartment, it might be a nurse or an orderly, it might be somebody who washes dishes. None of these people has a criminal record. They’re all law-abiding citizens. They get off work around midnight, maybe even after midnight. They have to commute home by subway, maybe by bus. When they arrive at the subway station or the bus stop, they have to walk some distance through a high-crime area. And they apply for a license, and they say: “Look, nobody has said I’m going to mug you next Thursday. However, there have been a lot of muggings in this area, and I am scared to death.” They do not get licenses, is that right?

Advertisement

When Underwood responded that it might be unwise to allow “a lot of armed people in an enclosed space” like the subway, Alito snapped: “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?”

Advertisement
Advertisement
Advertisement
Advertisement

Leave aside the question of when, exactly, Alito last rode the New York subway, which, despite some real problems, is not the crime-infested hellhole the justice made it out to be. (He is from New Jersey, which may help to explain his bias.) It’s extraordinary to see Alito express empathy, which he spurns in most other contexts. The justice has no apparent empathy for Texans forced to flee the state to terminate their pregnancies, or same-sex couples denied the right to marry, or racial minorities persecuted by law enforcement, or people on death row facing the threat of gruesome torture. But when a doorman wants to carry a handgun on the subway, his heart bleeds for them.

Advertisement
Advertisement

Similarly, Alito proved uncharacteristically eager to divine the ostensibly bigoted intent behind New York’s law. He was the first justice to cite a controversial brief filed by Black public defenders making the contested claim that the state’s concealed carry restrictions were motivated by racism, nativism, and suspicion of organized labor. “There are those who argue,” he said, that “a major reason” for the law’s enactment “was the belief that certain disfavored groups—members of labor unions, blacks, and Italians—were carrying guns and they were dangerous people and they wanted them disarmed.”

It is jaw-dropping to hear Alito express concern for labor unions, whose rights he has ruthlessly crushed in case after case. But it’s even more jarring to hear him acknowledge the possibility that racism may lurk behind the law. Just last year, when the Supreme Court noted that racism drove states to allow non-unanimous convictions in criminal trials, Alito flipped out: In a furious passage, he castigated his colleagues for merely recognizing this tainted history. “We should set an example of rational and civil discourse,” he huffed, “instead of contributing to the worst current trends.”

Advertisement
Advertisement

There’s little question that Alito and his conservative colleagues will invalidate New York’s “good cause” requirement and compel the state to hand out concealed carry licenses to any gun owner who wants one. At this point, the bigger issue—one Justice Neil Gorsuch raised repeatedly—is how the court will do it, and what ramifications its decision will have for other gun laws. Will the court deploy expansive rhetoric that undermines other gun restrictions? There are plenty under fire in the lower courts right now, including limits on open carry, bans on assault weapons and large capacity magazines, waiting periods, age restrictions, caps on the number of firearms an individual can buy each month, and more. Courts have generally upheld these laws, though conservative judges are increasingly eager to strike them down. Bruen could open the door to a new era of Second Amendment jurisprudence in which all firearm regulations are inherently suspect. All because five or six justices convinced themselves that the framers would’ve wanted to flood the New York subway with guns.

Advertisement