WASHINGTON – For more than 100 years New York has kept guns off the street with one of the strictest licensing regimes for carrying a concealed weapon, but that law will face its biggest challenge in arguments Wednesday before the U.S. Supreme Court.
The NRA’s New York chapter will contend in an appearance before the court’s new conservative majority that the state’s requirement that an applicant show "proper cause" for having a concealed-carry license for self-defense violates the constitutional right to bear arms.
A ruling in favor of the New York State Rifle & Pistol Association would create the biggest gun-rights expansion since the court’s 2008 Heller decision, which for the first time said the Second Amendment protects an individual’s right to keep a gun in the home for self-defense.
"This case is the latest in a big push to loosen gun restrictions — and, in particular, to use the Second Amendment to constitutionalize the kinds of gun deregulation that we’ve seen in many stages since the 1970s and 1980s," Joseph Blocher, co-director of Duke University’s Center for Firearms Law, told Newsday.
"A lot is at stake," said Eric Tirschwell, executive director and chief litigation counsel for Everytown for Gun Safety, a coalition of cities to promote gun safety founded by former New York City Mayor Michael Bloomberg.
"There about a half dozen other states that have similar laws, and there are tens of millions of people who live in jurisdictions where who can carry a gun in public is pretty closely restricted and regulated," he said. "That's important from a public safety perspective."
New York Rifle & Pistol Association board member John Cushman, of Patchogue, said, "We have hopes that the Supreme Court will see that for over 100 years that in licensing in New York state that they have been discretionary on their part and have treated their citizens poorly."
The case arises from New York’s strict gun laws, based on the 1911 Sullivan Act spurred by a surge of shooting deaths.
New York law requires applicants to prove "proper cause" to get a license to carry a concealed handgun, and licensing officers in each of the state’s 59 counties grant them for target practice, hunting, business or — the hardest to obtain — for self-defense.
A judge serving as the licensing officer denied unrestricted licenses to Rensselaer County gun owners Robert Nash in 2016 and Brandon Koch in 2018, but he allowed them to carry handguns for target practice, hunting and other back-road activities.
The NRA’s New York state branch sued the judge and the State Police. The Supreme Court accepted their case after it was thrown out by the Second Court of Appeals.
"If somebody thinks ‘I need to carry a firearm,’ and they do, that should be fine. But they say no, you can't prove that you're in any more danger than any other citizen so you can't get it for self-defense purposes," said Cushman.
To the demand by Nash and Koch to throw out the law requiring demonstration of a special need for self-protection, New York Attorney General Letitia James’ brief replied that history demonstrates that the law complies with the Second Amendment.
The arguments from both sides rely heavily on the text, history and tradition of Anglo and American treatment of weapons — with a particular focus on the 1328 Statute of Northampton, in England.
The statute said that "no man great nor small" could "go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison."
Blocher explained the two sides’ different interpretations.
"The argument of challengers is that the statute permitted public carry unless it was done … with an intent to terrify," he said. "New York will argue the statute was written to make clear that carrying weapons in these places was terrifying, and that's why it was prohibited."
Those clashing interpretations apply to the hundreds of years of laws, traditions and jurisprudence on gun restrictions and freedoms.
How many licenses
No one knows for sure how many licenses have been issued in New York state, or how much of a demand there is for those licenses.
The New York attorney general gave estimates based on State Police fingerprint checks of applicants: In 2018 and 2019, 65% of applicants won unrestricted licenses — a total of about 37,800.
And on Long Island, the Suffolk County’s police commissioner, who issues licenses in the county’s five western towns, has issued only 35 concealed carry licenses, 10 of them for personal protection, the department said.
It also has issued 31,330 sportsman licenses for home protection, target practice and hunting and 1,238 to business owners.
While Democratic and Republican lawmakers have lined up predictably for or against the New York licensing laws, some of the best-known ideological conservatives, including former Judge Michael Luttig, have said that history supports the New York law.
And legal experts are closely following at least two major issues.
"There’s what does the court say about the constitutionality of "proper cause" restrictions like New York's — and you know, that could go either way," said Blocher.
"The court could uphold them. The court could say that they're categorically unconstitutional or the court could say proper cost restrictions are okay, but this one's too stringent," he said.
Or, as the New York attorney general said in her brief, the case could be sent back down to determine a better factual record and whether the proper cause clause is constitutional.
The other thing that legal experts are watching is what the court will decide is the rule for determining if gun laws are constitutional or not, Blocher said.
"There's a real big push by some mostly conservative judges to adopt what's called the test of text history and tradition," he said, which Justice Brett Kavanaugh wrote about in a dissent when he served as a judge on the D.C. Circuit Court.
He said that gun laws should be evaluated solely on the basis of text history, tradition, and not, for example, by considering contemporary costs and benefits — including public safety.
"All of the credible social science tells us that more people carrying guns in public places leads to more gun violence, and that's why we think it's important that the court think about not only history, but also public safety," Tirschwell said. "At the end of the day, these are life and death issues."