The biggest surprise in Wednesday morning’s arguments in New York State Rifle & Pistol Association Inc. (NYSRPA) v. Bruen, a major Second Amendment case before the Supreme Court, is that conservative Justice Amy Coney Barrett appeared open to many of New York state’s arguments defending its restrictions on where individuals may carry a gun.
Even if Barrett does side with New York, however, her vote is unlikely to matter. Four justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — left little doubt that they will read the Second Amendment expansively. And, while Chief Justice John Roberts appeared to disagree with most of his fellow conservatives about how the Court should approach Second Amendment cases, his disagreement appears to be largely academic. He also appears likely to strike down New York’s law.
NYSRPA, in other words, revealed methodological disagreements among the conservative justices, but those disagreements are unlikely to have much practical impact: The case is likely to end with the curtailment of states’ ability to regulate where people can carry guns.
The case involves a 108-year-old New York law that requires anyone who wishes to carry a gun outside of their home to demonstrate “proper cause” before they can obtain a license allowing them to do so. In practice, it’s relatively easy for New York residents to obtain a limited license permitting them to carry firearms, particularly in areas that are not densely populated — indeed, two of the plaintiffs in NYSRPA already have a license permitting them to carry a gun to hunt, for target practice, or while in areas not “frequented by the general public.”
But they want an unlimited license — a license that, as Barrett indicated, would allow them to carry a concealed gun into Times Square in the middle of New York City’s famous New Year’s Eve celebration. That possibility, at the very least, appeared to give Barrett some pause.
Yet while Roberts also expressed concern about reading the Second Amendment so broadly that it would allow civilians to bring a firearm literally anywhere, he also appeared skeptical of New York’s restrictions. The chief justice seemed committed to the approach the Supreme Court took in District of Columbia v. Heller (2008), itself a precedent-setting case that undermined at least eight decades of Second Amendment jurisprudence and held that the Second Amendment protects an individual right to own a gun for personal “self-defense.”
Roberts suggested that, under Heller’s framework, gun rights should be even more expansive in cities than they are in rural areas. As Roberts put it during an exchange with New York Solicitor General Barbara Underwood, “How many muggings take place in the forest?”
The bottom line appears to be that, while there is an off chance Underwood convinced Barrett that the Second Amendment should be read to permit greater gun regulation in cities, she does not appear to have convinced Roberts. And that means she is unlikely to find five votes to save New York’s law.
Two different approaches to the Second Amendment
Regardless of whether New York’s licensure regime survives contact with the justices, NYSRPA also features an important doctrinal dispute between two very different approaches to the Second Amendment.
In the 13 years since Heller, lower federal appeals courts united around one approach to cases alleging that a gun regulation violates the Second Amendment. As one appeals court summarized this framework, “severe burdens on core Second Amendment rights,” such as limits on the right to use a gun for self-defense at home, are viewed with great skepticism by the courts. But “less onerous laws, or laws that govern conduct outside of the Second Amendment’s ‘core,’” — such as a law prohibiting people with domestic violence convictions from possessing a gun — are far more likely to be upheld.
But while every federal appeals court to consider the question has embraced this consensus framework, a handful of conservative insurgents dissented from those decisions. One was then-appellate Judge Brett Kavanaugh, who wrote in a 2011 dissenting opinion that the consensus approach should be abandoned. “Courts are to assess gun bans and regulations based on text, history, and tradition,” Kavanaugh claimed, not based on the framework embraced by most judges.
Most of the conservative justices — including Barrett — appeared to agree with Kavanaugh that courts should look to history rather than apply the consensus approach. Some of the conservative justices did ask questions about how Kavanaugh’s approach would work in practice — Thomas, for example, wondered whether he should compare modern gun laws to founding-era gun laws or to post-Civil War gun laws, when determining if the modern law is valid — but most of the conservative justices appeared comfortable making such an inquiry.
Notably, both Underwood and the plaintiffs challenging the New York law spent the bulk of their briefs citing laws and court decisions from hundreds of years ago and arguing about whether those old laws resemble the specific law now before the Court. So both parties appear to be betting that the Court will adopt Kavanaugh’s historical approach.
That’s not necessarily bad news for New York. Underwood’s brief makes a persuasive argument that the right to bear arms was historically understood to permit greater gun regulation in cities than in less-populated areas. It cites everything from a 1328 English law banning guns in “fairs” and “markets” to a colonial New Jersey law making it unlawful to “ride or go armed with sword, pistol, or dagger” except when traveling over long distances.
Though Barrett could still very well vote with her fellow conservatives, she did appear to be moved by some of Underwood’s historical arguments. The “historical record requires you” to concede that guns can be banned in “sensitive places,” Barrett said at one point to Paul Clement, the lawyer for the plaintiffs. At another point she told Clement that at least some regulation of guns must be allowed.
Yet even if Barrett does side with New York — and, again, there is no guarantee that she will — Roberts appeared less interested in the history of gun rights and more inclined to apply something like the consensus framework embraced by lower courts. He also appeared to believe that New York’s law violates this framework.
Recall that the consensus framework applies greater scrutiny to laws that burden the “core” of the Second Amendment. As Roberts noted, Heller rested on the idea that the core of the Second Amendment is a right to self-defense. And, he claimed, people are more likely to need to defend themselves when they are surrounded by other people than they are when alone — hence his quip about muggings in the forest.
If you’re counting votes, that means there are probably five justices who support the historical methodology preferred by conservatives, although Barrett might apply that methodology differently than her conservative colleagues. Meanwhile, though Roberts might reject that methodology, he reaches a conservative result through a different approach.
That’s bad news for New York. Again, it’s hard to see how the state counts to five.
The next big guns case is likely to focus on “sensitive places”
One area where Roberts and Barrett did appear to agree is that there should be some limits on guns in “sensitive places.” That’s consistent with Heller, which held that “nothing in our opinion should be taken to cast doubt on ... laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”
Barrett suggested that large gatherings, such as Times Square on New Year’s Eve, should qualify as such a “sensitive place.” Roberts also hinted that bans on firearms should be allowed on university campuses, in football stadiums, and in “any place where alcohol is served.”
But they also struggled to draw a line between these examples and other places where large numbers of people might gather. As Underwood noted, Times Square is very crowded on many nights. Why should the state only be allowed to prohibit guns from that area one night of the year?
In any event, Roberts’s questions about self-defense in cities suggest he does not believe that the entirety of New York City qualifies as a sensitive place. And the specific question of what happens if a state bans guns on campuses or at sporting events will likely have to wait until a new case raises that specific issue.
But Roberts’s and Barrett’s questions about sensitive places do suggest that, at the very least, there are five votes to impose some limits on gun rights — even if New York’s century-old law is likely to fall.