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The lawsuit challenging a New York law that restricts the ability to carry firearms outside the home would be the first major Second Amendment case heard by the court in a decade.
The Supreme Court will take up its first major Second Amendment case in more than a decade, agreeing Monday to hear a challenge to a New York law that restricts the ability of licensed gun owners to carry weapons outside the home.
While the Supreme Court has previously affirmed the right to own a firearm, it has not weighed in on the right to carry a firearm—and a ruling against New York could potentially upend similar concealed carry laws in seven states.
The lawsuit was brought by the New York Rifle and Pistol Association and two gun owners, who challenged the state’s denial of their concealed carry permits. New York requires concealed carry applicants to demonstrate a legally recognized reason for wanting to possess or carry a firearm. Residents in some professions are allowed concealed carry permits, but others must show a “proper cause exists” to support their request.
“While New York permits concealed carry of a handgun with a license, the state makes it virtually impossible for the ordinary law-abiding citizen to obtain a license,” wrote attorney Paul Clement in a petition requesting the case be heard.
A coalition of 23 state attorneys general urged the Supreme Court to hear the case and to overturn the New York law, arguing that laws like it “are unconstitutional because they impose state-created, subjective conditions upon the exercise of a fundamental constitutional right.”
The Supreme Court, which now has a six-justice conservative majority, affirmed it would hear the case to review “whether the state's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.”
Challenge to 'may issue' states
New York is one of eight states with a so-called “may issue” gun licensing regime. In these states, authorities have wide discretion to deny concealed carry permits to gun owners even if they meet statutory requirements to qualify to carry a firearm in public.
California, New Jersey, Maryland, Hawaii, Connecticut, Delaware and Massachusetts are all “may issue” states.
Second Amendment advocates said the states’ restrictions rely on arbitrary findings by state or local authorities.
“You may be a law-abiding citizen and comply with everything and get a background check, and they can still deny you a permit,” said Alan Gottlieb, founder of the Second Amendment Foundation, which has challenged restrictive gun laws across the country. “A right that exists only in one’s home isn’t a right at all.”
Other states have either a “shall issue” licensing regime, which requires concealed carry permits to be issued after applicants meet the statutory requirements, or they do not require permits to carry firearms outside the home.
New York Attorney General Letitia James defended the state’s “may issue” law, writing in documents filed with the Supreme Court that “it allows individuals who have ‘an articulable basis for believing they will need the weapon for self-defense’ to carry a handgun in public without restriction.” She added that gun owners are still allowed to carry firearms outside the home without a concealed carry permit for specific activities like hunting, target practice and employment.
In a statement issued Monday, James said her office “will vigorously defend any challenge to New York state’s gun laws that are intended to protect public safety.”
Federal momentum for change
President Biden this month has called for a series of measures to fight gun violence, including stricter regulation and tracking of firearms. In the wake of several mass shootings this year, gun safety advocates said the Supreme Court’s willingness to take up a gun case was troubling.
“Today’s announcement is a warning sign that our nation’s highest court is poised to brush aside the will of the people and instead side with gun lobby groups seeking to eliminate even the most modest firearm laws,” said Hannah Shearer, the litigation director at Giffords Law Center, in a statement.
The Supreme Court affirmed the right of individuals to keep guns in the home for self-defense in its landmark District of Columbia v. Heller ruling in 2008. The McDonald v. City of Chicago ruling two years later that struck down numerous gun laws in Chicago found that the Second Amendment rights recognized in the Heller decision also applied to states and municipalities.
The Supreme Court has largely shied away from gun rights cases since 2010, rejecting numerous Second Amendment appeals, including at least 10 cases last year.
During the past decade, appeals courts have split over the constitutionality of “may issue” permitting regimes.
The U.S. Court of Appeals for the D.C. Circuit upheld a decision in 2017 that blocked Washington, D.C. from requiring gun owners to demonstrate a “good reason” to obtain a permit. The District’s Attorney General Karl Racine declined to appeal the decision at the time, concerned that an adverse ruling could be used to dismantle gun laws across the country.
But other circuits have ruled as recently as last month that states can prohibit people from carrying firearms in public.
The Supreme Court will hear the New York case in the fall.
Andrea Noble is a staff correspondent with Route Fifty.