New York City Mayor Eric Adams has made ending the rising tide of gun violence a top priority. He describes it as “the civil rights battle of our lifetime” and explains that guns are “destroying the anatomy of our cities and our communities.” The mayor has met with President Joe Biden, appointed a “gun violence prevention czar,” issued a 15-page Blueprint to End Gun Violence and targeted guns on New York City streets.
But his efforts could be completely derailed at the end of this month when the Supreme Court is expected to strike down New York state’s concealed carry law in the case New York State Rifle & Pistol Association Inc. v. Bruen.
The law plays a critical role in reducing gun violence, deaths and injuries. It prohibits the concealed carry of a firearm without a permit. A showing of special need is required to obtain the permit.
Six other states have similar laws. Together with New York’s law, they protect more than 80 million citizens. One study shows these states have 13 percent fewer gun homicides than the states that do not limit concealed carry — a difference that saved thousands of lives in a decade. States such as Texas, Tennessee, Alabama, West Virginia and Arkansas have previously had such laws.
Until 2008, when the Supreme Court issued its 5-to-4 decision in Heller, the court had never found that the U.S. Constitution creates a right to own a firearm. That did not mean people could not own or use guns. It simply meant there was nothing in the Constitution that prevented Congress or the states from regulating their use. Heller changed that. It limited congressional regulation by recognizing a right to own a firearm in one’s home for self-defense. Two years later, the court found that right was incorporated by the Due Process Clause of the Fourteenth Amendment and therefore limited state regulation as well.
Now, despite the heart-breaking surge of gun violence in this country, the NRA affiliate New York State Rifle & Pistol Association argues that “gun rights” should be dramatically expanded to include the concealed carry of a firearm outside the home. Gun rights groups want to preclude Congress and the states from enacting laws like the New York law.
The NRA’s position was rejected by the trial court and the court of appeals. But if the oral argument before the Supreme Court is any indication, New York’s law may not survive, and gun violence, deaths and injuries may increase still further.
The gun rights petitioners argued that in “a country with the Second Amendment as a fundamental right, simply having more firearms cannot be a problem and there can’t be a government interest just to put a cap on the number of firearms.” According to this reasoning, citizens should be allowed to carry a concealed weapon in any location open to the general public, including in cities, like New York, that have large numbers of police officers.
Several justices seemed to agree. Take Justice Samuel Alito. He asked how it is consistent with “the core right of self-defense” — which the court has never recognized outside the home — to prevent citizens who “have to commute home by subway, maybe by bus” in New York City from carrying a concealed firearm. Alito asserted, without citing any evidence, that “there are a lot of armed people on the streets of New York and in the subways late at night right now” — and he appears to favor a ruling that could multiply that exponentially.
Chief Justice John Roberts said there are places “in a densely populated city where it’s more likely that you’re going to need a gun for self-defense” no matter how “many policemen are assigned.” Justice Brett Kavanaugh asked, “why isn’t it good enough to say: I live in a violent area, and I want to be able to defend myself?”
At one point, Kavanaugh remarked “the baseline is always the right established in the text” of the Constitution, “the historical practice can justify certain kinds of regulations,” and the courts should not be making “a policy judgment.” But he and the others who seemed sympathetic to the NRA’s approach did not even mention the actual text or follow the historical practice. Their questions echoed the NRA by assuming the conclusion that the Constitution creates a right to carry a concealed firearm.
The Second Amendment does not say that. It does not even mention the concealed carry of a firearm, let alone provide a right to carry a concealed weapon without the showing of special need required by New York: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Bearing arms is not the same as concealing them on your person.
The “historical practice” also shows there has never been a constitutional right to concealed carry. In Justice Clarence Thomas’s words: “Traditionally,” states have “prohibit[ed] the carrying of weapons in a concealed manner” and those laws “neither prohibit nor broadly frustrate any individual from generally exercising his right to bear arms.” The Heller decision agreed, explaining “the right secured by the Second Amendment … was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatsoever purpose.” The court then gave examples of historical limitations on the “right,” and the very first one was “the majority of the 19th-century courts to address the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” The court pointed to this as one of the “variety of tools” the District of Columbia could use to “combat” gun violence.
The Second Amendment itself says its purpose is to protect “the security of a free State.” Textualists like Alito, Roberts and Kavanaugh should respect that direction and permit New York to determine for itself what gun safety laws and regulations are necessary for its “security,” including the concealed carry law. They should reject the sophistry in Heller that while, “it is true that the term ‘State’ elsewhere in the Constitution refers to individual States,” in the Second Amendment it means something entirely different — a “polity.” And even if it means a “polity,” the New York law should stand to protect the security of the polity.
Alito’s suggestion that riders of New York City’s subways and buses should be able to choose to carry concealed firearms would be a disaster for law-abiding residents who use public transportation and for the police. Hellersaid “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.” Subways and buses, like airplanes, should not be excluded from that list.
Roberts’ and Kavanaugh’s apparent willingness to allow concealed carry city-wide would have an even worse impact on law-abiding residents and the police. At a time when the horrific gun violence has led even the Senate to take its first tentative steps in a long time to promote gun safety, will the court consider the consequences of the NRA’s efforts to multiply the number of firearms and make it impossible for Congress and the states to regulate them?
Michael J. Dell, a New York City resident, was a founding director of Americans for Firearm Injury Reduction in Medicine. He co-authored an amicus brief for the American Medical Association, the Medical Society of the State of New York, the American Academy of Pediatrics and the American Academy of Child and Adolescent Psychiatry in support of New York’s concealed carry law.