At Supreme Court oral argument, conservative justices question New York gun control law
WASHINGTON — Conservative justices on the U.S. Supreme Court expressed skepticism Wednesday after listening to two hours of oral arguments on a New York law that imposes strict limits on carrying a gun outside the home—a case that will test how far states can go when crafting their own laws.
In New York State Rifle & Pistol Assoc. v. Bruen, attorney Paul Clement—former U.S. solicitor general in the Bush administration—argued that New York’s restrictive gun laws infringe on an individual’s Second Amendment right to keep and bear arms.
“Carrying a firearm outside the home is a fundamental, constitutional right,” he said in his opening presentation to the court.
Chief Justice John Roberts said he found it surprising that local officials could make decisions about a constitutional right. Several other members of the court expressed that sentiment, but also agreed that states could decide whether to exclude guns from “sensitive places” in New York such as public transportation, New York University, Columbia University and Times Square on New Year’s Eve.
Justices Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh expressed their concern about the high bar applicants needed to meet in order to obtain a gun permit.
Barbara Underwood, New York’s solicitor general, defended the state’s law, arguing that the state is not an outlier in its restrictions because states have used a variety of regulations over the years.
Some cities also place their own restrictions, such as Chicago and Baltimore.
“And it’s not an outlier in asking a licensed applicant to show good cause for a carry license,” she said.
Justice Elena Kagan said that the brief Clement submitted to the court focused on the argument that the New York law is a “regulatory scheme” that deprives most people of their right to carry a gun, rather than the two individuals who brought the case against New York.
Most states broadly grant requests to carry weapons outside the home except for California, New York, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, Connecticut and Rhode Island. Those states have wide discretion to deny an applicant a concealed carry permit.
In those states, about 1% of all residents are approved for concealed carry, compared to about 10% in other states with looser laws.
States with tougher standards generally require an individual to demonstrate a need for self-protection, referred to as “proper cause.” A general desire to possess a concealed carry gun is not a sufficient reason in those states.
The gun rights advocates who are challenging New York’s law, Robert Nash and Brandon Koch, had applications for a concealed-carry license denied, but were granted “restricted” licenses to carry a gun for target shooting and hunting.
This is the first gun rights case the Supreme Court has taken up in years.
In 2008, the Court ruled in District of Columbia v. Heller that the Second Amendment does allow an individual the right to have a gun in his or her home for the purposes of self defense. In 2010, the Court confirmed in McDonald v. City of Chicago that the states must adhere to that right.
Justice Sonia Sotomayor noted that based on history, states have established their own restrictions on guns.
“Those 43 states that you’re talking about, most of them didn’t give unrestricted rights to carry of one form or another until recent times,” she said. “Before recent times, there were so many different regulations. What it appears to me is that the history and tradition of carrying weapons is that states get a lot of deference on this.”
New Jersey Acting Attorney General Andrew Bruck also defended the need to show proof that an individual needs to carry a gun outside the home.
“New Jersey residents should be able to go to a shopping mall or sporting event without having to worry about whether the person behind them is secretly carrying a firearm for no good reason,” Bruck said in a statement.
“The Second Amendment has always allowed states to adopt common-sense restrictions on carrying a concealed firearm in public—to protect their residents. A Supreme Court decision striking down reasonable firearm licensing laws would pose a significant risk to public safety.”
The Pew Research Center found that about three in every 10 Americans own a gun and that men are more likely to own a firearm than women, from 39% of men to 22% of women.
Some of the most recent data for gun deaths found that there were 39,773 deaths from gun-related injuries in 2017. Pew found that about 60% of gun deaths were by suicide.
By Jacob Fischler
Republicans in the U.S. Senate on Wednesday blocked another voting rights bill, this one named for Georgia civil rights icon John R. Lewis.
On a 50-49 vote, the Senate declined to proceed to debate on the latest Democratic effort at a nationwide voting rights overhaul meant to stymie Republican-led state laws restricting voting access. North Carolina’s Richard Burr and Thom Tillis voted ‘no.’
It was the third time this year Senate Democrats tried to bring a voting rights bill to the floor and the third time the attempt failed in the face of overwhelming GOP opposition.
All 50 Senate Democrats and one Republican, Alaska’s Lisa Murkwoski, voted in favor on Wednesday before Senate Majority Leader Chuck Schumer, (D-N.Y.), changed his yes vote to no for procedural reasons. Casting a no vote allows him to call another vote on the bill later. Senate rules require 60 votes to proceed to debate.
Murkowski was the first Republican senator to support any of the Democrats’ voting rights efforts this year. In a release Tuesday, she highlighted a portion of a substitute amendment she cosponsored that would expand voting access to Tribal and Alaska Native communities.
She did not support earlier voting rights bills and noted the new proposal she co-wrote was not the “sweeping overhaul” earlier versions represented.
Murkowski still has concerns
Although she voted to proceed to debate, Murkowski said she didn’t support all provisions of the bill text released Tuesday. The measure should be reworked through the committee process, she said Wednesday.
“Even with those changes, I still have concerns,” she said on the Senate floor. “Substantive changes will be needed before this measure is ready to pass the Senate.”
U.S. Sen. Patty Murray, (D-Wash.), said Democrats would continue to work on pushing legislation through the Senate, which is evenly divided between the parties.
“Democrats are not done on the issue of voting rights,” Murray, a member of party leadership, said just before the vote.
Murray called on Republicans to join, but also said she would support ending the filibuster to enact the bill.
Murkowski urged Congress to enact bipartisan reauthorization of the 1965 Voting Rights Act, noting Congress had updated the landmark civil rights law five times. The most recent reauthorization passed the Senate 98-0 in 2006.
Congress has not renewed the law, though, since a 2013 Supreme Court ruling that significantly weakened it.
Murkowski urged her fellow Republicans to help update federal voting regulations.
“We need to be willing to get in, mix it up, work it out, instead of sitting back on the sidelines and say, ‘I just don’t like your product, and I’m not going to offer anything else,’” she said. “I believe it is simply dangerous to let voting rights become a wholly partisan issue.”
Other Republicans unmoved
But Republicans have shown little inclination to join her call.
In a floor speech Wednesday, Senate Minority Leader Mitch McConnell of Kentucky criticized Democrats for trying to give the federal government too much control over elections processes. Elections, even for national offices, are administered by state and local governments.
“This has become an almost weekly routine—my friends on the other side trying to give Washington unprecedented power over how Americans cast their vote,” McConnell said.
President Joe Biden’s administration “strongly supports” the bill, the White House Office of Management and Budget said in a Wednesday statement. The flurry of state laws this year were an effort to “delegitimize the election and make it harder to vote,” the administration said.
By July, state Republican lawmakers in 18 states had passed 30 laws with restrictive voting provisions, according to the Brennan Center for Justice.
The bill was named for Lewis, who was elected to Congress as a Georgia Democrat after spending years as a leader in the civil rights movement. It would restore requirements for certain states to secure pre-approval from the federal government for any significant changes to voting rights.
The so-called preclearance requirements were a central part of the 1965 law credited with overturning Jim Crow voting restrictions that denied Black people ballot access. The 2013 Shelby County v. Holder Supreme Court case severely weakened the preclearance requirement.
That ruling paved the way for several Republican-led states to enact restrictions following the 2020 presidential election. Former President Donald Trump and many elected Republicans have without basis sought to delegitimize the results that declared Biden the winner.
The Native American Voting Rights Act title of the bill, strongly supported by Murkowski and Biden, would allow tribes to request voter registration sites and polling places on tribal lands, authorize tribal ID cards as a valid form of voting identification and authorize a $10 million Native American Voting Rights Task Force grant program.
Jacob Fischler covers federal policy and politics for the States Newsroom network.