November 3, 2021

Oral argument was held before the United States Supreme Court this morning in the case of New York State Rifle & Pistol Association, Inc. v. Kevin P. Bruen, in his Official Capacity of Superintendent of New York State Police. As previously reported, this lawsuit arises from a challenge to New York’s concealed carry law that requires applicants to make a showing of “proper cause” before a permit may be issued. Specifically, the statute gives licensing officers discretionary authority to deny applications, including when an applicant does not demonstrate a special need for self-defense that distinguishes them from the general public.  Based on the current composition of the Court and the questions posed by the Justices, it appears likely that the Supreme Court will declare that New York’s may issue handgun licensing law violates the Second Amendment.  More importantly, the decision may provide much needed guidance regarding the proper standard of review to be applied when deciding Second Amendment cases.
Counsel for Petitioners argued that carrying a firearm outside the home for self-defense is constitutionally protected under the Second Amendment. In particular, counsel argued that the licensing scheme requires New Yorkers to prove why they are atypical from the typical citizen, which incorrectly shifts the burden to individuals to prove why they are entitled to exercise their constitutional rights. Counsel suggested that New York should adopt the shall issue standard as applied in 43 other states. Unlike New York’s licensing standards, which are solely based on the discretion of licensing officers, the shall issue standard requires licensing officers to grant concealed carry permits to any person who meets specified criteria.
Counsel for Respondents argued that text, history, and tradition support their proposition that New York may restrict individuals from carrying firearms outside the home. Although they conceded that the right to bear arms is a fundamental right, they argued that history shows that carrying a firearm outside the home may be restricted.  Respondents cited several statutes and cases from the 19th century from states such as Texas, Tennessee, and Arkansas that prohibited the carrying of firearms outside the home.
Further, Respondents argued that allowing individuals in highly dense areas to carry firearms can lead to public safety concerns. However, this argument was negated by the fact that the 43 states that use the shall issue standard have had little to no problems, even though they include seven of the ten largest cities in the country. Also, one Justice indicated that there is likely to be a greater need to carry a handgun for purposes of self-defense in highly populated areas in comparison to rural areas.
Some of the Justices appeared to be skeptical of New York’s standard because of the discretion that it gives to the licensing officer to grant or deny permits. One Justice asked counsel for Respondents why denying ordinary citizens the right to carry a handgun for purposes of self-defense does not violate the Second Amendment. She responded to the question by attempting to raise the issue of public safety concerns that would arise from having numerous persons, such as persons on a crowded subway, being armed.
Further, the Justices took specific note of the fact that New York’s license scheme requires individuals to justify their desire to exercise their constitutional right to carry a handgun for purposes of self-defense. In contrast, individuals do not need to prove their need to exercise other constitutional rights, such as the First Amendment right to free speech, or the Sixth Amendment right to confront their accusers.
A major focus of the arguments was how a state may fairly regulate the possession of firearms in public places. Counsel for the Petitioners did not oppose restrictions on carrying in “sensitive” areas such as public schools and government buildings.  There was substantial discussion of how to define a “sensitive” area in which the carrying of handguns can be restricted.
This is the first major Second Amendment case that will be decided by the Supreme Court in over a decade.  The decision is expected to clarify the proper standard of review to be used when deciding Second Amendment cases that were left open by the decisions in McDonald v. City of Chicago and District of Columbia v. Heller, and have resulted in conflicting decisions by the lower courts.
A decision is expected to be issued before the close of the Supreme Court’s current term in June of 2022. Renzulli Law Firm will continue to monitor this case, which is likely to have a significant impact on concealed carry laws around the country. If you have any questions about this case, the Second Amendment, or licenses to carry concealed handguns in New York, please contact John F. Renzulli or Christopher Renzulli.