Last month, the U.S. Supreme Court announced it would hear a challenge to New York State’s restrictions on “public carry” of firearms. The case is slated to be briefed and argued in the October 2021 term with a decision by the summer of 2022. The case could result in a broad expansion of an individual’s right to carry a firearm in public, something many states regulate by requiring permits.
The case was brought on behalf of applicants denied these permits by the state’s Rifle & Pistol Association. The applicants and the Rifle & Pistol Association are known as the “petitioners” in legal parlance. Whichever way the Court rules, it would be the first major Second Amendment decision since McDonald v. City of Chicago in 2010, when the Court clarified that “individual self-defense” was the “central component” of the Second Amendment and that that right applied to the states. Given the 6-3 conservative majority, some legal observers are expecting the Court to undermine or strike down New York’s public carry permitting rules.
The Court will decide whether the state’s denial of the petitioners’ application for public carry licenses violated the Second Amendment, which will require them to examine details of New York’s public carry permitting standards and process. According to the New York Attorney General’s brief opposing the petition to the Supreme Court, the permitting process has remained generally unchanged since 1913 and is already fairly permissive: It requires that an applicant provide their personal information and demonstrate that they have no prior felony or “serious offense” conviction, that they can show “good moral character” and have a “legally recognized reason” for wanting to carry a firearm in public. Generally, a “legally recognized reason” means that an applicant for a public carry permit needs to show special circumstances that create an increased need for self-defense. The classic example of special circumstances would be for one’s occupation, say as a security guard, or related to one’s occupation, such as off-duty police officers.
The petitioners initially asked the Court to consider a much broader legal question: whether the Second Amendment allows a government to “prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.” But the Justices apparently recoiled at such a broad inquiry and instead limited the case to whether the individual applicants — two men who applied for and were denied public carry permits for failure to show “non-speculative need for self-defense” — had their rights violated under the Second Amendment. The narrower question could limit the Court’s ruling to the particular wording and actual process of New York’s permitting regime, but would set the stage for challenges to similar rules in many other states that have restrictions on public carry permits.
The legal technicalities of the case are a little arcane for a clear decision, because at the trial court level, the petitioners did not allege the kinds of facts expected for such a challenge — for example, they did not allege that “ordinary” New York residents who wanted public carry permits were regularly denied them, or that permits were de facto restricted to people in certain occupational categories. Usually facts about how a permitting process like New York’s actually works are determined in discovery at the trial court level. This lets a higher court fit their decision on specific contours of a permitting regime. In this case it would show whether requiring a “non-speculative need” to publicly carry a firearm actually prohibits a meaningful number of people who want permits to get them. The fact that the Justices granted certiorari in this case without those facts in evidence could suggest a desire to issue a broader ruling.
In a Second Amendment case dismissed as moot last year, Justices Samuel Alito and Brett Kavanaugh in dissent and concurrence respectively said they were concerned that lower courts were improperly applying the holding from McDonald that the core of the Second Amendment was the individual right to self-protection, statements taken at the time to be invitations to bring more ripe challenges to state permitting laws. In the case pending this October, the petitioners in a brief to the Court have argued that it is nonsensical to treat the fundamental right to possess a weapon as only applying to keeping a gun in the home, since a person will often need to protect themselves in public. So, despite the Court’s narrowing of the issue in this case, a broader holding could indeed be in the offing.
For the public, this case raises one of the many thorny and recurring problems of gun control in public policy. So long as the Second Amendment continues to be interpreted as an individual right to possess a firearm, rather than a collective right to form “well regulated militias,” the question remains whether any individuals should be favored by the state in the permitting process. It is not an unreasonable cause of concern for many people if only paid corporate security personnel and off-duty police officers are allowed to carry guns publicly. Nevertheless, requiring a permit is a potent deterrent to carrying a gun in public, which can obviously vastly decrease the type of gun violence that results from escalation of random conflicts, whether road rage or domestic disputes.
In the final analysis, without reform that plugs the faucet of firearm production, coercive regulations are more akin to sticking fingers in the dam. Legal immunity means firearm manufacturers lack any incentive to take care with how many weapons they produce and how they are sold. The resulting supply of firearms creates a sense of unease, and many people reasonably feel unsafe. At the same time, the state’s historically disproportionate enforcement of gun control laws against communities of color and disparate treatment of Black and Brown gun owners — the most high-profile example being Philando Castile — can be seen as simply exacerbating over-policing.
Should the Court rule with the petitioners and invalidate New York’s permitting process, this could wipe out any state’s rules requiring individuals show a specific need to carry a firearm in public, and the windfall to the firearms industry would be enormous; citizens could find themselves regularly confronted with gun-toting people on their street, on public transportation, brandishing them in cars. The literal arms race that could ensue would be disastrous for public health and the social fabric.
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