An upcoming U.S. Supreme Court ruling in a NY case could mean more handguns in public places

While the recent mass shootings in Texas and Buffalo have renewed calls for stronger gun control, the U.S. Supreme Court is poised to go in the opposite direction as it considers a challenge to New York's handgun law — among the strictest in the country.

A ruling is expected any day in the case of New York State Rifle & Pistol Association Inc. v. Bruen, one of the most anticipated of the court’s term. At issue are state permit provisions that leave it to the discretion of local officials to decide who has “proper cause” to carry a concealed handgun in public – a subjective standard opponents say infringes upon the Second Amendment right to bear arms.

New York’s discretionary approach, by most accounts, did not carry the day during oral arguments in November, fueling forecasts of a ruling that reins in New York licensing officers, and those in a half-dozen states with similar laws. Forty-three states allow concealed-carrying by lawful handgun owners as a matter of right, without requiring applicants show any special need for self-defense.

“If that [New York] law is swept away, it means a lot more gun carrying, presumably even in the five boroughs of New York city, never mind in upstate counties," said Robert Spitzer, the Distinguished Service Professor emeritus of political science at SUNY Cortland and author of six books on gun rights.

The decision is especially relevant in New York City, where officials have long credited strict gun laws as key to maintaining order as well as the city’s status as among the nation’s safest big cities, notwithstanding recent violence, including an attack on board a subway car in April that left 10 people with gunshot wounds. New York officials acknowledge that carry permits are harder to obtain in urban areas than in rural communities. It has added significance as well in New Jersey, California and Massachusetts – states with gun laws similar to New York.

If that [New York] law is swept away, it means a lot more gun carrying, presumably even in the five boroughs of New York city, never mind in upstate counties

Professor Robert Spitzer

By happenstance, the ruling will also follow as many across the nation continue to convulse over mass shootings, including the May 15th siege at a supermarket in Buffalo, where a teenage gunman targeted Black people, killing 10 and injuring three others, and the May 24th attack at a school in Uvalde, Texas, where another teenager killed 21, including 19 children, and injured 17 others. That teenage shooter was also killed. There was another mass shooting Wednesday at Saint Francis Hospital in Tulsa, Okla., that left five dead, including the gunman.

Those attacks were among more than 230 mass shootings this year in the U.S. – defined as incidents where there were at least four victims, not including the shooter — according to the nonprofit Gun Violence Archive. Many more have died from gun violence: 18,092 and counting in 2022, according to GVA, including homicides, suicides and accidents.

And into this mix could come more handguns in public places, as many predict the New York ruling will go. It is the first major gun-control case before the court since 2008 in District of Columbia vs. Heller, which established a constitutional right to keep a gun in the home.

In oral argument, Spitzer noted, several of the justices expressed sympathy for the view “that gun-carrying by civilians is a good way to protect themselves.” He disagrees.

“What it means instead is the opposite,” Spitzer said. “That is, when more civilians are carrying guns, it means more gun accidents. It means more guns being stolen. It means guns being used to commit suicide. It means guns falling into the wrong hands, one way or the other, whether it’s a child or a despondent teenager.”

The challenge to the New York law stems from the experience of two gun owners from upstate Rensselaer County. The court’s decision will likely reverberate beyond their Albany-area community; it has already implicated familiar issues of public safety, equitable policing and racial justice – both looking to the future and in New York’s past.

Two men from Rensselaer

Robert Nash and Brandon Koch applied for unlimited carrying permits in 2016, but were denied by the local licensing officer, who granted them only restricted or limited carrying permits, for hunting and target shooting, concluding they failed to demonstrate “proper cause” for self-defense, defined by the courts as a special need that goes beyond a general desire for self-protection.

Parties from across the ideological, political and public policy spectrum, in interviews and court filings, have weighed in on the implications of their challenge and the future of public safety, many lining up in predictable ways. But the case has its roots in gun law more than a century old, and in connected issues still unresolved.

In New York, the 1911 Sullivan Law “required permits to own or carry handguns” and was one of several laws passed across the nation in response to “concerns about organized labor, the huge number of immigrants, and race riots in which some blacks defended themselves with firearms," wrote University of Denver legal scholar David B. Kopel.

The focus on gun-wielding foreigners was reflected in news reports at the time.

“Down on the Bowery and on the avenues on the east and west sides revolvers sold like hot cakes yesterday, and about as cheap,” read a New York Times article from August 30th, 1911. “Low-browed foreigners bargained for weapons of every description and gloated over their good fortune in hearing of the drop in the gun market before it was too late — that is, before the Sullivan dangerous weapon law goes into effect on Friday.”

In subsequent years, said Kopel, “fear of Bolshevism and similar revolutionary movements also led to more state and local gun controls.” Further restrictions were imposed in the 1960s, in response to race riots across the U.S. and the growth of the Black Panther Party, whose members openly carried weapons.

Today, the NYPD Licensing Division notes that applicants for gun licenses “must be at least 21 years of age, of good moral character, and not in a condition — mental or physical — that would make it unsafe for you to possess a firearm.” Critics contend that the subjectivity of what constitutes “good moral character” improperly trips up many applicants, resulting in unwarranted denials. The challengers argue that the need to show a "proper cause" to carry a concealed handgun in public impermissibly converts a fundamental right for all into a privilege.

“African Americans, women, sexual minorities, religious minorities, immigrants, political dissidents and other historically marginalized groups are especially vulnerable to abuse under New York’s discretionary scheme,” states an amicus brief submitted by Black Guns Matter, A Girl & A Gun Women’s Shooting League and Armed Equality, which defines itself as “an LGBT friendly self-defense gun rights group.” Such “friend of the court” or amicus briefs filed by non-parties offer guidance to a court.

Maj Toure, the Philadelphia-based founder of Black Guns Matter (no relation to Black Lives Matter), pointed to the mass shooting in Buffalo, where he recently traveled to give a firearms education course.

“I went to the place where a psychopath said, ‘I'm going to murder people here, Black people specifically, I'm going to murder Black people here because I know that the rules don't allow them to protect themselves,’” Toure said in an interview with Gothamist.

Lawyers who defend clients in gun-violation cases, survivors of domestic abuse, civil rights groups, and law enforcement organizations also weighed in, asserting a close intimacy with the issues raised by the parties.

“For our clients, New York’s licensing regime renders the Second Amendment a legal fiction,” states an amicus brief submitted by the Bronx Defenders, Brooklyn Defenders Services and the Black Attorneys of Legal Aid, and joined by several other county public defender offices.

A representative of the Bronx Defenders said it would not discuss the Supreme Court case with Gothamist prior to a decision, and the Brooklyn Defenders did not respond to multiple requests for comment, but their brief in support of the challengers’ case was specifically raised in oral argument. It describes a set of cascading harms.

The groups claim Black and brown New Yorkers are unfairly denied licenses to own handguns, let alone permits to carry them in public. They pay a price for such denials — the arrest each year of hundreds of indigent people on gun charges – their clients – along with thousands of others, they wrote. Violators face up to four years in prison and fines up to $5,000.

“New York enacted its firearm licensing requirements to criminalize gun ownership by racial and ethnic minorities,” they wrote.

Remnants of stop-and-frisk

The claim harkened to another problematic stretch in New York City history.

According to the defenders, Black people in New York accounted for 78% of the state’s felony gun-possession cases in 2020, despite making up just 18% of the state’s population.

Non-Latino white people, 70% of the state’s population, accounted for just 7% of such prosecutions. In New York City, the defense attorneys claim, 96% of arrests for gun possession in 2020 were of Black or Latino people, and the percentage has been above 90% for 13 consecutive years.

Such racial imbalances are “no accident,” the attorneys wrote.

They pointed to “stop-and-frisk” policing in New York City, in addition to inequities in the state’s gun-licensing regime. Paul Clement, attorney for New York State Rifle & Pistol Association, of which Nash and Koch are members, referenced the warrantless stops in addressing the court, resurfacing one of the major controversies of former Mayor Michael Bloomberg's administration.

At its peak during Bloomberg’s term – from 2002 to 2013 – nearly 700,000 stop-and-frisk stops were made in 2011, the vast majority being Black and Latino New Yorkers, ostensibly to check for illegal guns. In a 2013 ruling, a federal judge concluded the city’s use of the tactic had been unconstitutional and amounted to racial profiling.

Judge Shira A. Scheindlin noted in her ruling that in 91% of the nearly 4.5 million stops between 2004 and mid-2012, no weapon was found and just 6% of the stops resulted in an arrest.

Her opinion, which led to a series of reforms, found the stops were problematic for another reason: Blacks and Latinos “were more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband.”

The public defenders cited an analysis showing this pattern persisted after Bloomberg left office, though the number of such detentions has declined dramatically, to a total of some 92,383 stops and 60,583 frisks between 2014 and 2017.

“Still, Black and Latino people were ‘less likely to be found with a weapon’ than others,” the lawyers write, citing New York Civil Liberties Union data. The group long complained that the stops, while ineffective at turning up illegal guns, help explain "soaring arrest rates for marijuana possession," with Blacks disproportionately represented in the numbers.

Solicitor General Barbara Underwood, representing New York in the pending gun case, disagreed with the contention that New York's discretion-laden framework for granting carrying permits has made it an outlier, saying the state’s laws “fit well within that tradition of regulating public carry.”

But Clement highlighted the defenders’ findings before the court, arguing that New York abuses its discretion in permitting, with “real world” costs.

"And if you want to know how this impacts policing," he told the justices, "one of the ways (is) essentially making everybody in New York City a presumptive person who is unlawfully carrying ... that leads to stopping and frisking everybody. "

I think that people of good moral character who start drinking a lot and who may be there for a football game or some kind of soccer game can get pretty angry at each other. And if they each have a concealed weapon, who knows?

Justice Stephen Breyer, U.S. Supreme Court

More guns, more worry

The NAACP Legal Defense & Educational Fund and National Urban League urged the justices not to weaken the state's gun laws.

Their brief to the court called past and present discrimination in the enforcement of gun regulations a “grave and unconstitutional harm” that should be addressed head-on in the courts.

But weaker laws, they said, would only cause more disproportionate harm to Blacks – as robbery victims, hate crime targets, and homicide victims, as set forth in a litany of government statistics, and published studies and journals cited in their brief.

"These tragic events are not isolated or rare,” the NAACP wrote, arguing that the state has an obligation to protect the public from gun violence. The looming question is how.

Professor Spitzer called the state’s laws “pretty effective at keeping guns out of the wrong hands.” But he expects the court to rule against the New York law “in a limited way,” or that it will “sweep aside the law.”

Several of the justices in oral argument contemplated what a limited ruling might look like – perhaps an order limiting the discretion of the New York officials to deny carrying permits to legal owners who meet certain objective criteria, such as clearing criminal and mental health background checks, and completing firearms training, while leaving undisturbed restrictions — at least for now — on carrying in so-called “sensitive places,” such as schools, stadiums and bars.

Justice Stephen Breyer imagined what else might be in store.

“You think that in New York City people should have considerable freedom to carry concealed weapons,” Breyer said during argument, addressing the challengers' attorney. “I think that people of good moral character who start drinking a lot and who may be there for a football game or some kind of soccer game can get pretty angry at each other, and if they each have a concealed weapon, who knows? And there are plenty of statistics in these briefs to show there's some people who do know, and a lot of people end up dead, OK?”