Showdown on guns at U.S. Supreme Court

Gov. Kathy Hochul has just signed 10 bills designed to regulate gun acquisition and use in New York State. At the same time, New York City Mayor Eric Adams and other mayors in the state joined forces to discuss what should be done to stop gun violence. They know that guns coming across state lines are difficult to regulate or control without congressional action.

They also know that whatever laws are passed, the Supreme Court is likely to strike them down or nullify their effect because of “Second Amendment” concerns.

Any day now, the court will hand down a decision concerning New York’s “concealed carry” law. It is important to know what will be implicated in this decision because it will affect the lives of all of us in the downstate region. 

In this state, licensing laws protect our right to have weapons in our homes, on firing ranges, or when hunting. In Texas and other states, however, anyone can buy a gun without a license or background check, and that person can carry a gun in open view so long as it is in a holster. These are known as “open carry” laws, enabling the person carrying the weapon to have it readily accessible — like Gary Cooper in “High Noon.”

But what about carrying concealed weapons on the streets or in churches, restaurants and theaters? Unless you are in law enforcement or have similar status, “open carry” is illegal in New York and over 35 other states. Under current New York law, if you want to “conceal carry” you need a special license, and an applicant has to prove they have “proper cause.” Not just a vague fear of violence — it has to be a genuinely credible threat against your life. For New Yorkers, and neighboring states with similar laws, all that is about to change.

The decision in New York State Rifle & Pistol Association v. Bruen will undoubtedly declare New York’s “concealed carry” law violative of the Second Amendment and therefore unconstitutional. When New York’s Solicitor General, Barbara Underwood, argued the case before the Court in November, she said it would be dangerous to allow weapons to be carried on “packed subways.” Justice Samuel Alito countered that the subway is the “very place people needed arms for protection.”

The Court may call upon New York to modify its “carry” law by deciding that guns cannot be conceal-carried in “sensitive areas” such as Times Square on New Year’s Eve. If the Court does that, the state must pass new laws to identify those “sensitive areas.” such as places of worship, theaters and sport arenas. That will undoubtedly set off another series of battles to determine what areas should be classified as “sensitive.”

However, as Underwood said in defending the law, a proliferation of guns — legal and illegal — would have an adverse effect on law enforcement: “They now can’t tell who’s shooting, if the shooting proliferates and accelerates” as people carrying weapons shoot at each other.

After the mass murder at Sandy Hook Elementary School in Connecticut, many states, including New York, sought to strengthen laws for assault weapons, large magazines, minimum age for handgun sales, and licensing requirements. The NRA and other groups were persistent in challenging these laws, but they were upheld by the lower courts and the Supreme Court did not entertain any appeals. That all changed when Justice Amy Coney Barrett replaced Justice Ruth Ginsburg and the court agreed to hear the appeal of New York’s concealed gun law. The Bruen case will be the first decided by the court since a landmark 2008 case transmogrified the meaning of the Second Amendment. There is a great fear that the ruling will be expansive enough to affect not only “carry” restrictions but other regulations now in effect in New York.

This guest essay reflects the views of Sol Wachtler, former chief judge of the New York State Court of Appeals and adjunct professor at Touro Law School.