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The decision in the New York case will make it more difficult to keep people from carrying firearms outside the home. It does allow governments to ban guns in ‘sensitive places,’ but further court battles are likely ahead to determine how that looks.
The U.S. Supreme Court on Thursday struck down New York’s gun law that restricted people from carrying guns in public unless they could show a need. The decision by a 6-3 majority of the court could jeopardize similar laws in other states, weakening gun restrictions at a time when the nation is reeling over the recent mass shootings in Buffalo, New York, and Uvalde, Texas.
California, Hawaii, Maryland, Massachusetts, New Jersey and Washington, D.C., have similar laws, the court noted.
“Shocking, absolutely shocking that they have taken away our right to have reasonable restrictions,” said New York Gov. Kathy Hochul after the court decision was announced. “I'm sorry this dark day has come.”
The Democratic governor is calling for the state legislature to meet in a special session to figure out a response.
City leaders also expressed disappointment about the decision.
“America’s mayors will continue to do everything they can, working with their police departments, community leaders and others to reduce gun violence and make their cities safer. It is unfortunate that the Supreme Court today made this vital mission more difficult,” wrote Tom Cochran, CEO and executive director of the U.S. Conference of Mayors, in a statement.
Though gun rights groups like the National Rifle Association praised the ruling, Justice Stephen Breyer, in his dissent, said he feared it will tie the hands of states in dealing with accelerating gun violence. There have been 277 reported mass shootings this year—“an average of more than one per day,” he noted.
“I fear that the Court’s interpretation ignores these significant dangers and leaves States without the ability to address them,” Breyer wrote in the dissent, joined by justices Sonia Sotomayor and Elena Kagan.
However, in writing for the court’s majority, Justice Clarence Thomas left the door open to allow state and local jurisdictions to pass gun restrictions barring guns from “sensitive places.”
Thomas noted that because there have been no disputes over barring guns in schools and government buildings, “these locations were ‘sensitive places’ where arms carrying could be prohibited consistent with the Second Amendment.”
Darrell A.H. Miller, co-director of the Duke Center for Firearms Law, told Route Fifty that states and localities will “have to figure out and specify what places to restrict guns.”
“New York might not have had to consider places like those that serve alcohol,” he said. “But there’s going to be a lot more pressure to think about sensitive places.”
However, Miller said it’s unclear what kinds of spaces will be allowed by the courts. Thomas, while affirming guns can be barred from certain places, did not say what those places are. The decision does not “comprehensively define ‘sensitive places,’” he wrote.
“I expect what we’ll see are states and cities passing another round of concealed carry laws that will try to adhere to the ruling,” said University of California, Los Angeles law professor Adam Winkler. “And we’ll see the Supreme Court rule over and over about what they’ll allow. This isn’t the end of the debate. This is just the beginning.”
Lisa Soronen, executive director of the State and Local Legal Center, which filed an amicus brief in the case on behalf of the U.S. Conference of Mayors and the National League of Cities supporting New York’s law, said a “silver lining” in the decision was a concurring opinion written by Justice Brett Kavanaugh with Chief Justice John Roberts, who said that “the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense.”
Kavanaugh noted that 43 states have requirements such as being fingerprinted, passing a background or mental health records check and undergoing firearms training.
The decision, Kavanaugh wrote, “is neither a regulatory straightjacket nor a regulatory blank check.”
Hochul, according to Politico, said New York plans to enact new regulations, including changing the permitting process, creating a higher threshold for a concealed carry permit and requiring firearms training.
“I believe that we are going to be finding a way to create a system where the default position is … a concealed carry is not allowed unless [businesses] affirmatively offer the right to someone to come in with a concealed carry,” she said.
New Jersey’s Democratic Gov. Phil Murphy condemned the decision as “based on deeply flawed constitutional methodology” by “a right-wing majority.”
His administration “has been closely reviewing options we believe are still available to us regarding who can carry concealed weapons and where they can carry them,” Murphy said in a statement. “We are carefully reviewing the Court’s language and will work to ensure that our gun safety laws are as strong as possible while remaining consistent with this tragic ruling.”
President Biden also condemned the decision in a statement, saying he is “deeply disappointed” and that the “ruling contradicts both common sense and the Constitution, and should deeply trouble us all.”
“I urge states to continue to enact and enforce commonsense laws to make their citizens and communities safer from gun violence,” Biden said.
The suit, New York State Rifle & Pistol Association v. Bruen, involved two New York residents, Brandon Koch and Robert Nash, who the decision acknowledged faced no particular danger, but wanted to carry firearms in public for safety. Both had been denied concealed weapons permits by the state.
In its decision, the court ruled that the state's law requiring they show a reason to carry a gun “violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.”
In striking down New York’s law, the court said it would not agree with a broad definition for where guns can be prohibited.
“There is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected generally by the New York City Police Department,” the decision said.
Complicating matters for states and local governments is that Thomas, in the decision, said regulations have to reflect “American tradition” by complying with the thought at the time of the nation’s founding.
However, Breyer wrote in his dissent that the reliance on what was accepted as restrictions on the Second Amendment in the 1700s will make it difficult for lawmakers to define “sensitive places.”
“So where does that leave the many locations in a modern city with no obvious 18th- or 19th-century analogue?”Breyer wrote. “What about subways, nightclubs, movie theaters, and sports stadiums?
Jurisdictions trying to write new laws should research places where guns were not allowed at the nation’s founding, Soronen said. But, she added, “we won’t know what history allows until the Supreme Court tells us.”
Breyer also noted that relying on history to judge what laws are acceptable now will make it difficult for courts to decide the slew of lawsuits to come over new gun regulations.
Rather, Breyer argued that the court should have left it up to states to decide how to balance gun violence while protecting gun rights, particularly because different areas face different situations. “The Court today severely burdens States’ efforts to do so,” he wrote.
The decision comes as the nation is still reeling from the recent mass shootings, and as the Congress is expected to pass a compromise bill that will not go as far as gun control advocates want.
The measure, which could pass the Senate and House this week, would among other things send federal funding to states to support so-called red flag laws. It also would allow states to use the funds to deal with gun owners thought to be a danger to themselves or others.
The National Rifle Association, which opposes the bill, praised the court in a statement as “the most significant Second Amendment ruling in more than a decade.”
The group’s vice president, Wayne LaPierre, said the “ruling brings life-saving justice to law-abiding Americans who have lived under unconstitutional regimes all across our country.”
Erich Pratt, senior vice president of Gun Owners of America, also praised the ruling.
“Allowing the government to decide which citizens are permitted to carry a firearm outside the home downgrades our God-given rights to mere privileges,” he wrote. “This is why the Second Amendment says our right to keep and bear firearms ‘shall not be infringed.”
Kery Murakami is a senior reporter for Route Fifty.