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Oral arguments have begun in New York State Rifle & Pistol Association v. Bruen, possibly the most pivotal gun-rights case to reach the high court since Heller v. District of Columbia in 2008. In that case, Justice Antonin Scalia wrote the majority opinion striking down Washington, D.C.'s ban on private handgun possession. In the process, the opinion established—for the first time! in 2008!—that the Second Amendment confers an individual right to bear arms within the home for self-defense. Plenty of people owned guns before then, and there was plenty of state law establishing the right to bear arms. And there's a strong argument that you have a right to defend your castle, particularly in rural areas where it may not be possible for police to arrive in time if there's a problem. But as a federal constitutional matter, the individual right to bear arms was not established until George W. Bush's last year in office.
The current case concerns whether that Second Amendment right extends outside the home, and Justice Samuel Alito gave us a good look at where things are going on Wednesday. The Rifle & Pistol Association, an NRA affiliate, has gone to bat for two New York State residents who applied for concealed-carry permits and were denied. New York is what's called a "may issue" state, in that it is at local authorities' discretion—in New York City, it's up to the NYPD—whether someone who applies to carry a concealed handgun can get a license to do so. It's been this way since 1911, when, following a rash of high-profile gun crime, including an assassination attempt against New York's then-mayor, a (notoriously crooked) Tammany Hall pol named Big Tim Sullivan ushered the Sullivan Act through the state legislature, which restricted private handgun ownership in the state.
Usually, you need to demonstrate some extraordinary need to carry a gun around—you've been specifically threatened by someone, you're a high-profile public figure who feels under threat. Otherwise it's a felony. (In today's practice, it's mostly celebrities and former or off-duty police officers who get permits, which isn't entirely fair, but also doesn't seem like reason on its own to strike down a century of law.) This is opposed to "shall issue" states, where pretty much anyone who passes a background check—and maybe does some training—can get a license to carry. In some states, you don't even need a permit. But not in New York, and particularly New York City, where likely fewer than 10,000 people are licensed. (It's hard to get exact statistics. My FOIL request is pending.) If the Supreme Court decides New York's law is unconstitutional, it could lead to tens or hundreds of thousands of people carrying guns around in the street, both in America's largest city and other jurisdictions, like Los Angeles, that have taken a similar approach.
Anyway, Alito questioned New York's solicitor general on the issue Wednesday, and in the process revealed that, at least on his vote, the die is cast.
In a colloquy with New York’s solicitor general, Justice Alito expresses empathy for working class New Yorkers forced to brave the city’s allegedly crime-infested subways on the way home from work, asking: Don’t they need to carry concealed guns to protect themselves? pic.twitter.com/n485J1Qy2m
— Mark Joseph Stern (@mjs_DC) November 3, 2021
Before we get to the specifics of what Alito's got going on here, let's just get the basic thing straight: Alito has already decided to strike down the law. Again, the core question at the heart of this case is whether the individual right to bear arms in the home for self-defense established by Scalia in 2008 also extends outside the home. But in his questioning, Alito asked how not allowing anyone who wants to concealed-carry a gun in the subway to do so is "consistent with the core right to self-defense, which is protected by the Second Amendment?" But Heller did not establish the right to carry a gun in public for self-defense! That's the whole point of this case! You're supposed to be hearing arguments around whether that's true, not using it as an established premise. Alito has reached his conclusion and is working backwards.
And he's backfilling the discussion in just the way your Facebook Uncle might, spinning horrifying tales of crime-infested urban hellscapes. The rise in violent crime in many American cities was real over the last two years, though New York's numbers are actually down year over year and the overall trend over decades is a steep decline. But even if we accept Alito's premise that crime is rampant on public transportation in America's largest city, let's digest his solution. (And the judge, putatively an impartial interpreter of The Law, is very much offering to make policy here. This should surprise no one. The court is a political vehicle that makes political decisions, something the American right has long understood. That's why they yelled about Liberal Activist Judges until they could stuff enough of their own in there to get their way on things.) Alito is imagining a different New York, where a hospital orderly finishes his shift and gets on the subway late at night—certainly a more dangerous commuting situation than most—and runs into an armed assailant trying to mug him. They then have a shootout on the subway car.
This is what's beneath the Stand Your Ground laws elsewhere, and the generalized impulse on the American right to see as many citizens armed in public as possible. If you have any sort of issue in the public square, you can just draw your concealed weapon and sort it out. Because in practice, this new policy that the Supreme Court's conservatives seem very likely to implement will not only apply late at night when the subway car is mostly empty. Anyone will be able to carry a gun on the train when it's full at rush hour, too. Hope no bystanders get in the way if there's a dispute! Hope no one uses their new gun-toting privileges to project power in the public square and intimidate others, rather than as a last-resort means of self-defense!
I used to live in Tennessee, where you can legally carry a gun in a bar. Nothing like alcohol and deadly weapons to get the party started. But if you live in a jurisdiction where lax gun laws and carrying weapons in the public square are the preference of most citizens, then that's your prerogative. The idea the Supreme Court's conservatives will just waltz in and throw out a 110-year-old New York law, however, throwing their own professed "textualism" and "originalism" out the window to make their own policy, is frankly absurd. Carrying guns in public is not a right so essential as the right to vote or to an education. This is not a situation like Brown v. Board of Education, where the Court must step in to overturn state policy in defense of core individual rights. Previously, a federal judge appointed by President George W. Bush cited 700 years of American and English law upholding the government's power to regulate arms in the public square. But none of that is any match for high-powered judges who may already have made up their minds. Something something "states' rights," something something "government is best when it's closest to the people."
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