Nov 9, 2021

SCOTUS looks set to expand gun rights.

SCOTUS looks set to expand gun rights.
Photo by Fibonacci Blue

A case in New York could have a huge impact.

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 10 minutes.

We're exploring the gun rights case in New York. Because the main story is a little long today, we're also skipping our reader question.

Photo by Fibonacci Blue
Photo by Fibonacci Blue


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Quick hits.

  1. Attorney General Merrick Garland announced charges against two hackers in connection to ransomware attacks that impacted thousands of businesses and extorted millions of dollars. (The charges)
  2. Former President Trump told the RNC chair he was planning to leave the GOP, according to a new book by ABC's Jonathan Karl. (The story)
  3. Arizona Republican Paul Gosar is under fire after sharing a photoshopped anime video where he is attacking Rep. Alexandria Ocasio-Cortez (D-NY) and President Joe Biden. (The video)
  4. New Hampshire Gov. Chris Sununu (R) announced he would run for re-election rather than run for Senate as many Republicans had hoped. (The announcement)
  5. The Jan. 6 House Committee issued subpoenas to six additional associates of former President Trump. (The subpoenas)

Today's topic.

Guns. Last week, the Supreme Court heard oral arguments in New York State Rifle & Pistol Association v. Bruen, a challenge to a 108-year-old New York gun law that requires someone who wants to carry a concealed weapon for self-defense to show "proper cause" for doing so, and to apply for a special permit. The law is being challenged by the New York State Rifle and Pistol Association (NYSRPA), which says it is an overburdensome restriction on the Second Amendment.

During oral arguments in the case, a majority of the Supreme Court seemed sympathetic to the NYSRPA, indicating they believe Americans generally have a right to carry a firearm outside the home. However, the justices also expressed concerns about the proliferation of handguns in crowded public places like the New York City subway or Yankee Stadium, and debated among themselves whether the right to carry could be regulated differently in urban and rural areas.

The history: The second amendment in its entirety reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." In 1939, the Supreme Court ruled unanimously in United States v. Miller that the obvious purpose of the Second Amendment was to make citizen militias possible, and because militias were by then an archaic idea, the ruling gave wide latitude to states to regulate gun ownership and laws.

In 2008, however, SCOTUS ruled for the first time, in a 5-4 decision in District of Columbia v. Heller, that the Second Amendment protected an individual's right to own a gun for self-defense. In that ruling, the court also said “the right secured by the Second Amendment is not unlimited,” allowing many states and localities to keep their power in limiting how people can exercise their second amendment privileges.

Now, this case in New York could further minimize the ability of the government to restrict the second amendment. If the justices rule in favor of the NYSRPA, which they seem poised to do, the critical issue will be how broad or narrow their ruling is — whether it applies to just New York, or, by extension, the six other states that also impose strict gun regulations (and then, how it might affect gun legislation more broadly across the country). The ruling could also have lasting effects on how guns are regulated in more densely populated areas across the U.S.

Below, we'll take a look at some arguments on the right and left, then my take.

What the right is saying.

The right is hoping SCOTUS strikes down the statute, saying it is unconstitutional and isn’t necessarily protecting New Yorkers.

In The Wall Street Journal, Stephen Halbrook said a Constitutional right is not a right when you need approval to exercise it.

"In its brief to the Supreme Court in Bruen, New York justifies its denial of carry licenses on the basis that the applicants failed to show 'a non-speculative need for armed self-defense in all public places.' That suggests that most of 'the people' don’t have a 'right' to bear arms after all. It’s a privilege to be doled out under government discretion," Halbrook said. "In Heller, which concerned the right to keep arms in the home, the court observed that 'laws forbidding the carrying of firearms in sensitive places such as schools and government buildings' are presumptively valid. That implies that restrictions applicable in 'all public places' aren’t presumptively valid."

"New York next appeals to history and tradition, digging up the 1328 Statute of Northampton," Halbrook wrote. "But English courts interpreted that statute to prohibit persons from going armed 'in affray of the peace,' not if they were acting peaceably. America’s Founders would have scorned the idea that they needed 'the king’s license' to carry guns—a requirement that New York cites as if it’s a part of the American heritage."

In The New York Post, Nicole Gelinas said the justices arguing showed they are woefully unfamiliar with the city, and the right to carry may not end up expansive at all.

"The court’s newest member, Amy Coney Barrett, made the first rookie tourist mistake, common enough to out-of-towners: When she thinks New York, she thinks Times Square," Gelinas said, referencing Barrett's comments that Times Square would probably need to be a gun-free zone. "But wait: If Times Square is 'sensitive' on a busy night, then so is much of the city, much of the time. Rockefeller Center is about to get 'sensitive' for two and a half months, when the storied Christmas tree arrives. The Triborough and Brooklyn bridges are 'sensitive' landmarks, as is the Lincoln Tunnel.

"If the point of this exercise is to rescue us from tyranny, it seems odd to delegate deciding what is 'sensitive' to government. Will the court be back in a year to hear whether the Tompkins Square Halloween Dog Parade is sensitive?" Gelinas asked. "Any compromise may be hollow. Sure, you can carry in New York but not on a bridge, tunnel, subway or bus; nor in or near a crowded avenue, square, park, college campus or major public event or entertainment venue; nor in stores, restaurants, bars or clubs. The beach is probably not looking so great, either. Our potential newfound right to bear arms may be boring and lonely.

And in Breitbart, Mark W. Smith argued New York should lose the Supreme Court case even on the public safety argument.

"Why? Well, it comes down to the old saying 'When guns are outlawed, only outlaws will have guns.' ... Consider what will happen if the Supreme Court strikes down New York’s restriction on public carry," Smith wrote. "Who will end up securing carry licenses? Law-abiding citizens. Even if New York lifts its restriction, applicants for licenses to carry would presumably still need to satisfy eligibility requirements such as confirming that they are not felons, they are not mentally ill, and that they do not use illegal drugs."New York’s lawyers ought to be aware of the data showing that concealed-carry license holders are extremely unlikely to commit crimes," Smith added. "Data from the Crime Prevention Research Center (CPRC), for example, indicates that while police commit firearms violations at a rate of 16.5 per 100,000 officers, the rate for permit holders in Florida and Texas is just 1.4 per 100,000, with similar data in other states."

What the left is saying.

The left hopes SCOTUS makes a narrow ruling, and that New York is still able to regulate the number of people who can carry guns in public.

In The New York Times, J. Michael Luttig (former U.S. Court of Appeals judge) and Richard D. Bernstein (an appellate lawyer) said it would be a grave mistake to repeal New York's law.

"The court should affirm the constitutionality of New York’s public-carry statute and the other statutes nationwide that limit and restrict the public carry of handguns," they wrote. "The court has a newly reconstituted conservative majority who may want to expand Second Amendment rights and protections. But that would be a mistake in this case because the framers of our Constitution intended the people and their democratically elected legislatures to decide where and when to permit the carry of firearms in public, as they have done for centuries.

"The Supreme Court is not constitutionally empowered to make these decisions, and it is ill-suited to make them," they added. "For the justices to begin deciding for the people exactly where and when a person has a right to carry a handgun in public would be to establish the court as essentially a National Review Board for Public-Carry Regulations, precisely the kind of constitutional commandeering of the democratic process that conservatives and conservative jurists have long lamented in other areas of the law, such as abortion. It would be hypocritical for this conservative court to assume what essentially would be a legislative oversight role over public-carry rights, when conservatives on and off the court have for almost 50 years roundly criticized the court for assuming that same role over abortion rights."

In The Nation, Elie Mystal said the Supreme Court is "poised to give a major win to gun nuts."

"The notion that it violates the Second Amendment to require people to give a reason to carry a gun strikes me as ludicrous, particularly when that amendment states the reason to bear arms clear in its first clause ('A well regulated Militia, being necessary to the Security of a free State…'). But conservative justices made that bad argument sound even worse," Mystal said. "Justice Samuel Alito argued that commuters need the freedom to carry loaded weapons on New York City subways to protect themselves from the criminals he believes are stalking every passenger on the 7 train. It sounded a lot like the white fear that drenched the [Bernhard] Goetz case.

"There doesn’t appear to be a way to stop conservatives from doing this, however," Mystal said. "There’s no way to prevent them from unleashing trigger-happy vigilantes onto our streets and subways. That’s because, at core, NYS Rifle is about extending the warped logic of the 2008 case District of Columbia v. Heller to its bloody yet logical conclusion. In Heller, the Supreme Court for the first time recognized a 'right' to bear arms purely for personal self-defense. Heller was limited to self-defense inside the home, but if one accepts its logic (which I do not), it’s difficult to argue that the new right to shoot things that go bump in the night can be limited to one’s private domain. And if one agrees that there’s a personal right to self-defense outside the home, well, this is how you get Rambo riding the subway."

In MSNBC, Barbara McQuade said New York would be at "greater risk of gun violence, threats from foreign and domestic terrorism and political extremism" if the law is repealed.

"Concealed carry of firearms allows for coordinated and deadly attack-planning because they enable the element of surprise," she wrote. "For this reason, handguns are the weapon of choice in most mass shootings. In 81 percent of mass shootings in the United States over the past 12 years, at least one handgun was used, according to an Everytown for Gun Safety Support Fund analysis. In 60 percent of mass shootings, only a handgun was used... Second, striking down New York’s licensing requirement would permit terrorists to further exploit our already lax gun laws. The FBI has assessed that America’s abundance of guns makes us more vulnerable than other countries to terrorist attacks."

My take.

I've conceded before that my views on gun rights tend to be right-of-center, in that I fundamentally see the need and use for them, I respect people's right to carry firearms, and I myself have enjoyed both living in gun-friendly states and shooting guns for sport. Legal, registered gun owners in America are overwhelmingly law-abiding, they regularly use their firearms for self-defense without firing a shot (brandishing a weapon or threatening the use of one is often enough) and — whether you like it not — thanks to Heller, they now have both Supreme Court precedent and enshrined Second Amendment rights at their back in this case.

Generally speaking, the public safety logic really isn't that hard to follow, either: Armed criminals will be less enthusiastic about attacking citizens that could be armed versus citizens they know are sitting ducks. Whether the data supports that depends on where you're looking and for how long, but it's not always as simple as "more guns means more dead people."

Still, there are a lot of issues here. First, the fundamental argument that prospective gun owners are having their rights infringed here in New York City strains credulity. 65% of applicants for New York's concealed carry permits receive them. The city's residents have not had gun restrictions imposed on them for a century — they've supported gun restrictions for a century. The last time gun rights were a hot button issue here, in the wake of the Parkland shooting, about 90% of New Yorkers said they wanted more restrictive gun control laws by expanding the background check waiting period (another 85% said they wanted to ban all domestic abusers from getting guns). This wasn't just in the ultra-liberal city, but statewide.

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