WASHINGTON — As the country grapples with the shock of the two recent mass shootings, the Supreme Court’s conservative majority stands poised to issue a decision soon on the constitutionality of New York’s concealed carry permits, which could loosen gun laws.
The justices will hand down their ruling in the next few weeks in a case brought by the New York affiliate of the National Rifle Association, and scholars and activists say it could have far-reaching ramifications for legal restrictions on firearms.
“At least from the tone and timbre of the [justices’] questioning, I think it’s pretty apparent that the New York licensing law is going to be ruled unconstitutional,” said Darrell Miller, a Duke Law School professor, referring to the oral arguments on the case in November.
“And the real question I think that we're waiting for is just exactly how broad a ruling we’ll get,” Miller, co-director of the Duke Center for Firearms Law, told Newsday, noting the court’s majority could issue a range of opinions from narrow to sweeping.
Everyone on both sides of the gun debate will closely read the Supreme Court justices’ opinions when they come down — not only for the actual ruling on New York’s concealed-carry law but also on the justices’ methodology for the decision.
The Supreme Court’s ruling in the case, New York State Rifle & Pistol Association v. New York State Police Superintendent Kevin Bruen, will come at a fraught time.
The shocking shooting deaths of 10 people by an 18-year-old man who allegedly targeted Black people at a Buffalo supermarket and the slaying of 19 school children and two teachers by another 18-year-old man with an assault-style rifle in Uvalde, Texas, have rocked activists and many lawmakers.
On Sunday, President Joe Biden is scheduled to go to Uvalde, Texas to grieve with the community.
On June 11, gun-safety rallies will be held in Washington, D.C., and around the country by March for Our Lives, a group founded by students who survived the mass shooting four years ago that took 17 lives at Marjory Stoneman Douglas High School in Parkland, Florida.
New York Gov. Kathy Hochul unveiled a sweeping package of new gun regulations and legislative proposals after the Buffalo shooting, and last week said the State Legislature should raise the legal age for firearm purchases from 18 to 21.
And led by Sen. Chris Murphy (D-Conn.), senators from both parties will be negotiating on bipartisan compromise legislation during the Senate’s two-week recess to expand required background checks and to encourage red-flag laws to stop troubled individuals from having guns.
Senate Majority Leader Chuck Schumer, a New York Democrat, in a statement to Newsday urged the Supreme Court justices to allow states to determine their gun laws.
“The majority of New York’s crime guns come from the states with poor gun safety laws. Concealed carry permit standards are also weaker in those same states. Some states allow domestic violent offenders to hold a permit and carry a weapon,” Schumer said.
“We do not want these unsafe standards in New York, and the court should see this as an issue of states’ rights, and move on,” he said.
Based on the 1911 Sullivan Act spurred by a surge of shooting deaths in New York City, the New York state law requires applicants to prove proper cause — "a special or unique danger to their life" — to local licensing officials to get a permit to carry a concealed handgun.
Two upstate New York gun owners sued the state because they could not get concealed carry licenses, based on the discretion of local authorities. The Supreme Court took the case.
Richard M. Aborn, president of the Citizens Crime Commission of New York City, predicted two possible rulings: totally strike down the law or allow restrictions on carrying a concealed firearm in “sensitive places” such as schools, subways or areas such as Times Square.
In the landmark 2008 decision in District of Columbia v. Heller, the Supreme Court ruled for the first time that the Second Amendment protects the right to keep firearms in the home for the purpose of self-defense.
But Justice Antonin Scalia wrote in the majority opinion that the ruling did not cast doubts on laws banning guns to felons and the mentally ill “or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”
During oral arguments on the New York case, justices and lawyers talked about which sensitive places might be appropriate.
Miller and other lawyers said just as important as the ruling will be the rationale the majority uses for the ruling — specifically whether it will base the decision on current issues and conditions as well as precedent, or will it rely strictly on “text, history and tradition.”
That approach was advocated by Justice Brett Kavanaugh in a dissent he wrote as a D.C. Circuit Court judge that said gun laws should be evaluated solely based on ‘text, history and tradition.”
And in oral arguments in November, Paul Clement, the New York State Rifle & Pistol Association’s lawyer, told Kavanaugh that the “muddle” states had made of the Heller ruling “is probably a very good reason to prefer a ‘text, history and tradition approach.’”
But Miller said that if the court adopts that approach in this case, going forward governments and litigants would have to completely recalibrate how they argue Second Amendment cases, and every judge and legislator would have to become amateur historians when handling gun laws.
That narrow approach would not take into account contemporary research on the effects of gun violence in public places, for example, or the growing number of mass shootings with powerful weapons such as assault-style rifles, gun safety groups argue.
Miller and other lawyers said a ruling based on history and tradition also could throw up for grabs the legal status of a wide swath of firearms regulations and lead the Supreme Court to strike down other gun laws.
Cases already waiting in the wings include a New Jersey ban on magazines holding 10 round or more, Hawaii’s open carry law and Maryland’s ban on semi-automatic weapons, such as the AR-15 used in the Uvalde school shooting.
However the Supreme Court finally rules, Aborn said, “New York should do everything it possibly can do to restrict carrying, consistent with the opinion. And what that will look like we’re not going to know until we see the opinion.”