By George L. Lyon, Jr*

WASHINGTON, DC, NOV. 3, 2021:  The Supreme Court today heard arguments in the case of New York State Rifle and Pistol Association v. Bruen. This case concerns the constitutionality of New York’s Sullivan law which requires applicants for an unrestricted pistol license to show “good cause,” defined as a special need for self-protection, distinct from the average person in their particular occupations. The law was previously upheld by the United States Court of Appeals for the Second Circuit. Former U.S. Solicitor General Paul Clement argued for the opponents of the law. New York’s Solicitor General and the Acting Solicitor General of the United States argued in support of the law.

Mr. Clement opened by stating that the Supreme Court’s 2008 Heller decision confirms the right of an individual, independent of service in a state militia, to both keep and to carry arms, that New York concedes there is a right to carry outside the home and that concession dooms the New York good cause requirement because it transforms a right into a mere privilege subject to the whims of governmental authorities.

The Justices’ questioning of counsel provided a fair degree of insight into how they are viewing the case.  It was apparent from the questioning by Justices Breyer, Kagan, and Sotomayor that they see nothing constitutional infirm with New York’s good cause requirement. Although all the Justices seemed to agree that the court should look to text, history and tradition as at least an initial starting point in evaluating the case, there was not uniformity in terms of what historical periods should be most relevant to the court’s decision on this issue. Justice Thomas, for example, asked whether the founding period was most relevant or the period surrounding the adoption of the 14^thAmendment, which the Court construes as having applied the Second Amendment to the several states.  Mr. Clement’s response was that to the extent the history was in conflict, the period of the adoption of the 14^thAmendment was most appropriate, but that here there is no such conflict. Mr. Clement would limit examination of history beyond those times as he said that the point is to look at the history that's relevant for understanding the original public meaning of the Second Amendment and the 14th Amendment. 

Justice Breyer questioned whether the historical discussion in Heller was accurate but also suggested that the record in the case lacked sufficient data as to how New York is applying its good cause standard, in essence suggesting the court should remand the case for factual development. Mr. Clement responded that as to his two clients, there is no question how the good cause standard was applied because they were both denied unrestricted licenses for lack of good cause.

Justice Kagan observed that while Heller presumptively validated laws prohibiting felons and the mentally ill from possessing firearms, these laws were of relatively recent vintage, e.g., in the 1920s.  Mr. Clement pointed out that at the founding, felonies were capital crimes, and also that regulations in the 20^th century were to a large extent based on the collective rights theory that Heller rejected. 

A theme of both New York and the United States as well as Justice Sotomayor was to suggest a robust history of firearms regulation in the nation. New York’s counsel also placed substantial reliance on the ancient Statute of Northampton and on 18^th and 19^th century surety laws to support restrictions on carrying arms outside the home. Mr. Clement pointed out that the Statute of Northampton has not been interpreted to prevent carrying arms except where one carries dangerous and unusual arms to terrorize the people.  He further suggested that the surety laws New York referenced actually supported a right to carry arms in self-defense because such laws assumed the right to carry and only on complaint of an abuse of that right did they require a bond to keep the peace while still carrying.

Justice Alito who appears to have concluded that the good cause requirement is constitutionally infirm also called out New York for omitting the term “armed offensively” when citing a manual on the laws of North Carolina that appeared to call for the arrest of persons going armed. New York’s response was that firearms are inherently offensive. By the way, New York was not alone in making these types of omissions. Amici in support of New York made similar questionable omissions when quoting historical resources. Justice Alito also raised the question how scattered statutes or judicial decisions in the 19^th and 20^th centuries that are inconsistent with petitioners’ argument bear on the original intent of the Second Amendment.

It appears that Chief Justice Roberts shares Justice Alito’s skepticism with respect to the good cause requirement. Chief Justice Roberts suggested that Heller rather than Northampton should be the starting point. 

This occurred in the context of another issue that merited substantial discussion, whether there should be a different rule for urban rather than rural areas. New York’s counsel argued that permits are more plentiful in rural areas of New York than in the more populated areas and that guns in populated areas create a greater risk of harm. Chief Justice Roberts pushed back against this line of argument. He said that Heller relied on the right of self-defense and that it is more likely that one would need a gun for self-defense in a populated area than in a rural area, pointing to high crime urban areas. “How many muggings happen in the woods?” he asked. He continued this line of inquiry and asked a hypothetical question about someone concerned about an active serial killer. New York’s counsel suggested that alone was not a sufficient reason to allow a citizen to carry outside the home for self-protection. Justice Kavanaugh picked up on that line and asked why isn’t it good enough to say you live in a violent area? New York’s counsel’s response can best be described as largely unresponsive to the question.

Justice Kavanaugh expressed concern that the discretion afforded licensing officials is inconsistent with the notion of a constitutional right. Justice Kagan stated that it seemed intuitive to her that there should be different gun regimes in New York versus Wyoming but stated that it is a hard concept to match with our notion of constitutional rights. She stated that the First Amendment would never allow such a distinction and asked for justification. Counsel’s response was that local conditions and concerns should dictate and that New York delegates the decision on license issuance to local officials.

The Justices seemed intent on examining the “sensitive places” issue which is not directly raised by the case. Chief Justice Roberts asked Mr. Clement whether universities could be off limits or places that serve alcohol. Mr. Clement responded yes to universities and that states could restrict consuming alcohol while carrying. Other Justices asked about sports stadiums, protests, subways, and special events. Justice Barrett asked about Times Square on New Year’s Eve. Mr. Clement suggested that as to particular places, the courts should look to historical analogs. He further likened sensitive places to the non-public forum doctrine in First Amendment law, basically a place where given its nature weapons would be out of place. Justice Alito suggested that a way to handle the sensitive places question would be to examine whether the state has taken alternative means to safeguard persons, for example, though use of metal detectors.

On balance it appears five votes exist to overturn the good reason requirement with Justice Barrett possibly a sixth vote.  

Here is a link to the transcript of the argument on the Supreme Court’s website: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-843_i4dk.pdf.

* Arsenal Attorneys is a nationwide law firm headquartered in Fairfax, Virginia in the metropolitan Washington, DC. The firm offers serves clients in over 30 states in estate planning, criminal defense, civil litigation, business law, landlord-tenant disputes, real estate, firearms law, restoration of rights, carry permits, and the firm’s proprietary Arsenal Gun Trust. Matthew Bergstrom is the firm’s Managing Attorney, and he is licensed in California, Michigan, Nevada, Virginia, and the District of Columbia. George Lyon is licensed to practice law in Virginia and the District of Columbia. He was one of the plaintiffs in Palmer v. District of Columbia which forced DC to begin issuing concealed carry licenses, and he was one of the initial plaintiffs in the US Supreme Court's landmark Second Amendment decision, Heller, which legalized handguns in Washington, DC. Mr. Lyon is licensed by the Metropolitan Police Department to teach the DC Concealed Carry License course including the renewal course and conducts the course monthly. Contact Mr. Lyon at gll[at]arsenalattorneys.com.

This blog is intended for informational purposes only and is not intended as legal advice.