ED: You can listen to the oral arguments in this morning’s Supreme Court Second Amendment case by clicking the image above (it will open a new page in your browser). Below, we’ll feature commentary during the arguments from Cody Wisniewski, director of the Mountain States Legal Foundation’s Center to Keep and Bear Arms, and TTAG contributor and Supreme Court bar member LKB.
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If you’d like to listen to the oral arguments again, click here.
Feel free to enter questions in the comments below. You can also enter questions for our expert panel who will hold a discussion analyzing the full arguments that will posted today at about noon.
Cody Wisniewski: Petitioner (NYSRPA) will have 35 minutes to argue, but can reserve up to 5 minutes for rebuttal (which will occur at the very end of the argument). Then Respondent (state of New York) will have 20 minutes to argue followed by the United States with 15 minutes.
Each attorney will have 2 minutes uninterrupted, and then the Justices can ask questions. Once the attorney’s argument time is expired, each Justice will have to opportunity to questions that attorney individually. Questioning will proceed in order of seniority, beginning with the Chief Justice.
Arguing for the NYSRPA is former Solicitor General Paul Clement.
Justice Gorsuch is out ill (not COVID). He reported a stomach bug. He will be participating remotely.
Clement leads with history in grounding his opening statement for NYSRPA and then transitions into the almost complete bar to carry imposed by New York.
LKB: First question by Thomas!
CW: Thomas asks about how to analogize using text, history, and tradition to modern regulation.
Clement answers: only prohibition on carry that is anywhere near New York’s were Reconstruction Era complete carry bans, all of which were struck down by courts focusing on individual right approach.
Clement makes an important point about looking to history to establish original public meaning, NOT to look at it generally or without focus.
Kagen with the next question. Asks about those “longstanding” regulations referred to in Heller. What is the effect of prohibitions on mentally ill, felons, etc. which date to the 20th Century.
Clement answers to ground those in early history.
LKB: Question by Breyer: claiming that NY state actually allows carry permits!
CW: As an aside, there have been a number of briefs written on the issue of prohibiting certain individuals from carrying. History only supports prohibiting known, dangerous individuals from possessing arms. You can look to the recent Dispossession cases for those (Holloway, Folajtar, and Flick).
Clement now highlighting the special need requirement in New York in response to Kagen’s questioning.
Important detail in this case, the individual plaintiffs have restricted carry licenses. They can carry for hunting and target practice, but not for self-defense. They asked the licensing official to remove that restriction. The licensing officer did not, which prompted this suit.
LKB: Clement nails Breyer’s “but guns are icky” questions . . .
CW: Breyer asks the question posed in many of the Pro-New York briefs. Should this be completely unrestricted? You’ll have people going around with concealed guns and people will be killed.
Clement focuses on that not being the case in the 43 shall-issue states.
LKB: Sotomayer trying to argue that history supports restricting concealed carry. Totally BS. Clement should knock this out of the park.
Sotomayor claims appellants are “making it up.” Methinks the justice protesteth too much . . . .
CW: Its incredibly interesting that the progressive-leaning Justices are now asking in depth history questions. Proof that Originalism is now the focus of the Court. I don’t think you would see this line of questioning 30 years ago.
Clement focuses on the statutory difference between concealed and open carry. Argues that New York needs at least one type of unrestricted license. They ask for concealed b/c that is NY’s current regime. Says if NY wants to shift to an open carry regime, so be it, but they would need some level of unrestricted carry in that scheme as well.
Surety laws! This is my brief with the Center to Keep and Bear Arms.
Clement gets it exactly right. Surety laws assumed a base right of public carry and would only offer minor restrictions on carry on an individualized basis.
LKB: Roberts questioning on where the state CAN restrict carry . . . i.e., what are sensitive places?
Clement makes the proper point: sensitive place exception cannot be the exception that swallows the rule.
CW: The non-public forum analogy to 1A law for sensitive places poses an interesting thought experiment. BUT it feels like we’re being taken away from the core of the argument here.
The Justices are asking Clement to address the world of public carry, not just the pure ability to carry in public.
Kagen asks whether there should be carry on campuses, like NYU Clement retorts there isn’t much of a campus like NYU.
Clement in response to whether sporting events are sensitive places: “If a private entity wants to restrict access, then I don’t see the government action.”
LKB: ACB question that suggests allowing “sensitive place” restrictions can be subject to local control.
CW: Alito comes in with the sensitive places softball. Can’t we label places sensitive based on where the state has provided other means of security.
A number of shall-issue states handle sensitive places in this manner.
Clement worries that places with a lot of police may be labeled as sensitive. I think he could have focused more closely on the core of Alito’s question. Look at courthouses, not city blocks.
LKB: Breyer claiming that more conceal carry means more shootings.
Again, if that is so, why aren’t the streets running with blood in 43 states. Clement nails this.
CW: Clement’s argument time is up. That is why the Chief Justice ended the line of questioning .
Questions proceed in order of seniority, which is why the Chief Justice went to Justice Thomas first.
Justices Breyer and Alito pass on the final questioning.
Clement makes a great point in response to Sotomayor. Constitutionally protected rights shouldn’t depend on asking permission from a government official.
Justice Kagen is next. Very strongly focusing on concealed v. open in the history. This has been a common argument from pro-NY briefs. Essentially, why do you get to pick concealed when open was the common method of carry in history?
This goes to the “analogue” problem. How do we use history? When does it have to be literal and when can it be drawn by analogy?
Clement focuses on the RIGHT to carry in public upheld in 19th century courts. The “norms” had a favor of open rather than concealed. Says the norms have flipped now.
In other words, Clement is arguing the state has to allow public carry, but the state can choose the appropriate method.
Justice Gorsuch comes in now. Brings up amici who argue that lower courts need direction and have rejected text, history, and tradition test. I was one of those amici…
Clement starts with a strong answer. Make it clear to the lower courts what the test is. Should be text, history, and tradition. If scrutiny, then it should be strict.
LKB: Gorsuch lobs the softball on what the rule going forward should be. Clement says it should be text, history and tradition; if not, strict scrutiny; if intermediate with narrow tailoring.
Gorsuch serves up another softball on Statute of Northampton.
Clement hits the correct points.
CW: Justice Kavanaugh next. He has “several questions.”
First, Kavanaugh asks about “shall issue” regimes. Assumes Clement doesn’t object to those. Clement says he does not.
Focusing on the shall issue regimes buries the lead in my view. The key here is the individual right to self-defense. Individuals have the right to safeguard their lives as they see fit. This could end up with NY passing a “shall issue” law that is no real improvement on its current regime.
LKB: Kavanaugh — questions seem to indicate he says you focus on the text first.
CW: Not sure how else Clement could have answered it without losing ground with Justice Kavanaugh and maybe the Chief Justice though.
LKB: Kavanaugh expresses reluctance to use any balancing. Yay!
CW: Clement offers strict scrutiny as the best form of scrutiny, but Justice Kavanaugh pushes back. Why would we even want that?
Clement, in his response advocates again for the text, history, and tradition test.
Justice Barrett is last. She asks whether we should use First Amendment law as our guide for Second Amendment law .
Clement makes a fair point. It can help, but shouldn’t be taken whole cloth into the 2A space.
Now up, Barbara Underwood for the State of New York. She is the New York Solicitor General . She only has 20 minutes (because the US took 15 minutes). Underwood leads with “need.”
Justice Thomas with the first question again! This is like being struck by lightening twice! Asks about the distinction between urban and rural.
Underwood suggests that the NY licensing system, but giving deference to the local licensing official, accounts for any concern about population density.
Justice Alito suggests there is a “higher need” for self-defense in more populated areas because they are more dangerous. Doesn’t Heller highlight the importance of self-defense?
LKB: Alito asks the hard question: since Heller is based on the right to defense, isn’t there a greater need in a more populated area?
CW: Underwood responds that history supports more restriction in public places. The “market or public square”
This line of questioning feels like it goes in NY’s favor though. If there are all of these “on the ground” questions that need answers, then courts are generally willing to defer to local authorities, which they deem “experts.”
Underwood admits that a general fear of danger, in high crime neighborhoods, late at night, is not enough for NY.
Alito asks about the plethora of armed people already in NY. Underwood admits there are a number of illegal guns in NY, but doesn’t have the “number” of illegal guns seized last year.
LKB: Once again, NY claims more guns => more shootings, but the experience of 43 other states belies that.
CW: Justice Kavanaugh comes in to ask about “discretion” being inconsistent with constitutionally protected rights.
Kavanaugh: “What’s the problem with shall-issue regimes?”
Underwood: “More guns .”
BUT Kavanaugh points out that data from other states doesn’t support Underwood’s point that more guns = more crime or more danger .
Justice Kagen brings up the question of local flexibility in tension with constitutionally protected rights. Could be a softball, but big that Kagen is drawing that distinction.
And Underwood highlights my worry. If this is a local fact problem, then local judges may be deemed to be the most knowledgeable by courts.
Justice Sotomayor with the clarification. Is there any other constitutionally protected right that has such a varied level of application based on local conditions?
Underwood just talks about 2A regulations again. Does not draw an analogy to any other right.
Underwood’s time is up. Justice Thomas is first up for the final round of questioning.
This is big! Breyer asks if we’re talking about New York City . “We’re not talking about New York City?” Underwood responds that she doesn’t see how we could be.
This highlights the scope problem. IF we’re limited to the fact patterns of the two individual plaintiffs, they are more rural. IF we’re talking about the carry regime generally, then this would absolutely implicate the city.
We’ll speak about facial v. as applied challenges in the video wrap up panel.
Justice Alito calls to the briefs. Asks Underwood if NY got a “little too enthusiastic” in their recount of history. Underwood says she doesn’t know what he is referring to.
Alito comes with receipts!
NY dropped the word “offensively” from a history cite talking about the manner of carriage of weapons. Justice Alito is clearly implying this is misleading.
Underwood claims that possession in and of itself is “offensive” so they didn’t need that particular word…
LKB: ACB asks a loaded question on whether Heller is binding.
CW: Time for the United States. Elizabeth Prelogar, United States Solicitor General, is not arguing. The assistant SG is arguing in her stead.
US SG concedes the text, history, and tradition test??
In their Amicus brief, the US presented text, history, and tradition in unison with a scrutiny analysis.
“Sometimes, text, history, and tradition will not yield a conclusive answer. . . In some cases, it may be possible to “reason by analogy from history and tradition” to assess a new law. . . But where specific analogies are unavailable or do not provide clear guidance, courts will need doctrinal tests.” – US Brief at 12.
The US is the first party to really dig into some of the historical case law. Clement referenced it, but was quickly taken away by questions. Underwood didn’t cite to any real case law in her argument.
The US argues that Clement is misinterpreting the historical case law.
The SG’s position is that unless 2A takes the option off the table, then NY should be allowed to maintain a law it has had for more than a century. Says historical cases don’t evidence that NY’s law is specifically prohibited by the Second Amendment.
The “Sullivan Law” which is the basis for the current law, comes up in questioning. It was absolutely discriminatory when passed. The law specifically targeted immigrants in NY.
The US is going very hard at the application of the text, history, and tradition test being key here, but that the direct application in this case means NY’s law stands.
Great question in the comments. Yes, the US is essentially arguing in support of New York’s law. They are “bound” by the arguments in the US’s amicus brief.
The US: “There is a substantial history and tradition” of the regulation of the public carrying of weapons, especially pistols.
Justice Kagen: Any evidence about how getting rid of “may issue” actually effects policing, keeping the streets safe, and their own safety?
US: Points the Court to the Social Scientists’ amicus brief. BUT share the concern of NY about more guns on the streets meaning less safety. Still no data points. Assistant SG: “All that I can give you is my own sense.”
Justice Gorsuch again asks about the appropriate test to be applied in 2A cases. The US essentially says historically courts asked about reasonableness thus the closest we have to that today is intermediate scrutiny.
Last Up, Clement for the NYSRPA in rebuttal.
Point 1: In a country with the Second Amendment “more firearms” cannot be a legitimate problem the state can seek to solve .
Point 2: Population density isn’t key because more people also means more individuals with Second Amendment protected rights.
LKB: Clement nails the issue that based on experience, more guns does not mean more shooting.
CW: Clement highlights than the TN and TX cases cited by US are problematic because of their history and TX’s independent constitutional amendment.
Clement makes a good point; no party has argued that there is NOT a right to self-defense outside the home, we’ve only heard argument about the degree of regulation allowed.
LKB: Agreed. That does not auger well for the Hawaii case.
END OF ARGUMENTS