“When the other side talks about ‘remand’ you know they think they lost.”
That’s the initial uptempo feedback I received immediately after the Supreme Court’s oral arguments in the New York State Rifle & Pistol Association’s challenge to New York State’s 100-year old concealed carry permitting law.
The lengthy session featured give-and-take between attorneys for both sides and the justices. As the court asked questions, listeners began to wonder if they were debating the merits of the case, or looking for suggestions that would allow them to narrowly tailor a decision.
If they can’t, they’ll have no alternative but to toss a longstanding, but fundamentally flawed, law. That would have nationwide repercussions, especially for other laws based on New York’s statute.
Of course, “flawed” is a subjective description.
If you goal is to limit the ability of average citizens to exercise a fundamental right, it’s optimal. Carrying a litany of stipulated requirements, it is then ultimately decided by the subjective decision of an “examining officer.”
An average citizen commuting through high-crime areas in low-traffic times, might disagree. For them, it’s a longstanding, but deeply flawed law that, for more than a century, has served as a criminal protection statute.
On its surface, it seems an open-and-shut issue.
If a state enacts a regulation with questionable and admittedly subjective standards on a Constitutionally-guaranteed right, it changes a right into a privilege.
New York Solicitor General Barbara D. Underwood struggled to defend the statute, but stuck to New York’s assertion that from fourteenth century England to the colonies, through the post-Civil War 1800s, and into the last century, it was acceptable to require “good cause” before granting the right to carry a concealed weapon.
“Under that historical perspective,” she said, “the New York law fits, it is not an outlier.”
That, Paul Clement argued, ignored more recent history.
The thirteen years of legal opinions following the Heller decision should be considered before taking the much longer, historical perspective, he argued.
Viewed through that lens, Clement said, the lower courts absent Supreme Court directed standards of scrutiny or guidelines had“made a muddle of it.”
Justice Gorsuch essentially agreed, pointing out that lower courts have been all over the legal map when it came to deciding Second Amendment issues.
“Some,” Gorsuch observed, “waited, leaving it up to us to decide questions, others applied rational scrutiny, and still others applied their own ‘watered down’ version of intermediate scrutiny.”
“Others,” he continued, “refused to consider historical perspectives, or refused to consider strict scrutiny.”
The Supreme Court exists to clarify those murky questions.
Justice Elena Kagan argued that rather than stipulating intermediate or strict scrutiny, the court should rule based on post-1871 history. That position, she said was more “relevant” as it would embrace a “collective rights interpretation.”
That interpretation would also be the one most likely to allow New York State’s restrictive statute to survive in some form.
At one point in the arguments, Associate Justice Steven Breyer asked the question that seemed to be on each of the judge’s minds.
“What,” he asked, “are we supposed to say that won’t create a gun-related chaos?”
That, fortunately, isn’t a question for anyone except the Justices to decide.
Justice Brett Kavanaugh quizzed Underwood regarding why it was essential that a citizen demonstrate a unique need to protect themselves. “Why isn’t it good enough,” he asked, “to say I live in a violent neighborhood and I want to be able to defend myself?”
“With any constitutional right,” he continued, “if it’s up to the discretion of an individual officer, that seems inconsistent with an objective constitutional right.”
In defense of the New York law, Underwood then pointed out, the unrestricted concealed carry sought by the plaintiffs but denied by the state, was more readily available in “more rural areas.”
That prompted this pointed question from Chief Justice John Roberts: “How many muggings take place in the forest?”
Justice Samuel Alito, regarded as one of the most conservative of the Justices, wasn’t having any of the urban/rural argument either.
“How many illegal guns were seized by the New York Police Department last year,” he asked.
Underwood replied that it was “likely substantial.”
Alito then asked a pointed question at the heart of the matter: “All these people with illegal guns, they’re on the subway, they’re walking around the streets. But the ordinary, hard-working people I mentioned, no, they can’t be armed?”
Second Amendment advocates are cautiously optimistic that the Supreme Court will rule in their favor. When the other side offers up a suggestion that the law be sent back to the state to be revised into something that would be workable (remanded), it’s not unreasonable to think they believe the question decided.
A remedy, however, is always the issue. That’s the Supreme Court’s job. Next summer, we’ll see what they come up with.
We’ll keep you posted.
— Jim Shepherd