Today’s oral arguments suggest that a metaphorical and then a literal bloodbath is coming:
No need for suspense: The Supreme Court is going to force New York, and every other state, to issue concealed carry permits to any law-abiding citizen who requests one. The only question left, after oral arguments on Wednesday in New York State Rifle & Pistol Association v. Bruen, is whether the conservative supermajority will use sweeping language that casts doubt on the constitutionality of other long-standing restrictions on the right to bear arms. Based on the Republican-appointed justices’ biting questions, we can probably assume it will.
The timing, though, is not a coincidence. Lower courts have been split over concealed carry restrictions for years, yet the Supreme Court did not step in until 2021—after Justices Amy Coney Barrett and Brett Kavanaugh had joined the bench. Barrett’s predecessor, Justice Ruth Bader Ginsburg, voted against gun rights, while Kavanaugh’s predecessor, Justice Anthony Kennedy, demanded language limiting the scope of Heller. Chief Justice John Roberts seemed eager to avoid Second Amendment cases, if only for fear of backlash. But his vote no longer matters with Barrett and Kavanaugh on the court. Both justices were chosen, in part, because of their past opinions endorsing a broad vision of the right to bear arms.
So when Paul Clement, arguing on behalf of the petitioners, began attacking New York’s “good cause” rule on Wednesday, the court promptly cleaved along partisan lines. The conservative justices mostly tossed softballs, while the liberal justices launched a fusillade of questions about the constitutional and practical consequences of his position. After Clement insisted that New York could still ban guns in “sensitive places,” Justice Elena Kagan (who once shot a deer while hunting with Antonin Scalia) pressed for examples: What about the New York City subway? The NYU campus? Crowded stadiums? Packed protests?
Much of Clement’s argument derived from history, or rather a fantasy version of history that erases a vast record of stringent gun regulations from the colonial era through the ratification of the constitutional provisions that allegedly establish an individual right to bear arms. Thirteen years of research have demonstrated that Heller contains a multitude of errors that undercut its central claim. It’s too late to persuade the Supreme Court’s amateur historians that Heller was wrong. But, as Justice Sonia Sotomayor pointed out on Wednesday, the historical record also demonstrates that the right to carry a concealed weapon in public is not clearly rooted in American tradition, either. Sotomayor reminded Clement that many of the colonies “restricted concealed arms” before the Revolutionary War, and states maintained these bans following independence. And “after the Civil War, there were many, many more states” that granted “a right to arms but not concealed.”
“Many of the laws conditioned or retained the right of the state to decide which people were eligible” to carry concealed guns, Sotomayor said. “To carry the arms,” citizens “had to be subject to the approval of the local sheriff or the local mayor.” Why, she wondered, “is a ‘good cause’ requirement any different than that discretion that was given to local officials to deny the carrying of firearms to people that they thought it was inappropriate?” The best Clement could muster was that he didn’t “read” the “historical examples” the “same way” Sotomayor did.
One thing about the new supermajority is that Sam Alito, who used to be a master at concealing radical substantive views in dry, technical language, feels free to go full “Rush Limbaugh imitator” during oral argument, and stop pretending that history or text is actually doing any work here:
Frustrated with historical Whac-a-mole, Justice Samuel Alito took a simpler approach: bemoan the plight of the “ordinary law abiding citizens” denied their “right to self-defense.” His question to New York Solicitor General Barbara Underwood is worth quoting in full:
“So I want you to think about people like this, people who work late at night in Manhattan, it might be somebody who cleans offices, it might be a doorman at an apartment, it might be a nurse or an orderly, it might be somebody who washes dishes. None of these people has a criminal record. They’re all law-abiding citizens. They get off work around midnight, maybe even after midnight. They have to commute home by subway, maybe by bus. When they arrive at the subway station or the bus stop, they have to walk some distance through a high-crime area. And they apply for a license, and they say: “Look, nobody has said I’m going to mug you next Thursday. However, there have been a lot of muggings in this area, and I am scared to death.” They do not get licenses, is that right?”
When Underwood responded that it might be unwise to allow “a lot of armed people in an enclosed space” like the subway, Alito snapped: “There are a lot of armed people on the streets of New York and in the subways late at night right now, aren’t there?”
Alito’s careful analysis of documentaries like Death Wish and The Warriors leaves him no doubt that it’s rivers of blood out there! And surely adding more guns into the mix will solve everything. The Second Amendment, after all, enacted Mr. Liam Neeson’s Taken series.
As Stern says, Roberts seemed OK with the more moderate Heller rule, so this is a case where Kennedy retiring strategically and Ginsburg refusing to is a really big deal. And it’s going to happen again and again. At least Stephen Breyer has learned absolutely nothing from this experience.