Justice Brett Kavanaugh expressed concern that New York's permitting system gives officials broad discretion over whether to approve or deny a request for a permit. Kavanaugh stated that this is not the way we treat constitutional rights.
Chief Justice John Roberts also expressed similar reservations.
Roberts stated that you don't have to state when you are applying for a permit to speak at a street corner that your speech was particularly important. Roberts said that the idea that you need a license in order to exercise your right is not common in the context of Bill of Rights.
The nearly two-hour court session Wednesday was more like a history lesson rather than a legal argument. New York's law was criticized by those who claimed it was not in line with other states' views of the Second Amendment. New York's defenders argued that there is a long history of states placing various limits on gun ownership in public.
Liberal justices ruled that gun control opponents wanted to invalidate a number of laws going back to American history, including those dating to the colonial period and England.
Justice Sonia Sotomayor stated that it seems to me that because of the history and tradition surrounding carrying weapons, states are given a lot more deference. It is hard to imagine how I can get past that history.
Justice Stephen Breyer stated that the competing historical claims showed the flaws of using history to interpret constitutional protections.
This is a great example of both sides being shown. Breyer said that he isn't sure how to handle the history.
Justice Elana Kagan acknowledged that weapons are allowed in many states without permits, but noted that concealed carry was often prohibited and that open display is encouraged by those states.
You will find a different set of rules if you examine the history than the one you suggest. Kagan spoke to Paul Clement about the difficulties of looking back to history. Clement was a lawyer representing two New York gun owners who were suing for violations of state law.
Clement admitted that there are some misconceptions about guns, but he said that the justices shouldn't ignore the fact that guns were legal in many states during most of U.S. History. He said that you cannot just throw it all away.
Wednesday's case is about a question that was not resolved by the Supreme Court in 2008, District of Columbia. Heller (a 5-4 decision) found that individuals have a constitutional right to keep guns at home.
New York's law was challenged by the justices, who debated whether the recognition of a right to carry guns in public would cause a flood of lawsuits over attempts to limit weapons possession in certain places. These locations could include government buildings, universities, bars, and even private homes.
Roberts asked Clement if the right would apply to places that are open to the public. However, Clement answered that it did not mean one could bring a gun to a game of football. Clement gave a non-committal answer. He said, "You'd probably take it by itself and look at the historical analogs."
Kagan was compelled to join the fray. How does it cash in? She asked what it meant, and if the university campus was generally open to the public.
Justice Amy Coney Barrett questioned Clement if his test would require that the state allow guns into Times Square on New Years Eve. Although it is open to the public on New Years Eve, access is usually more restricted on that night.
Clement stated that he would view this as the type of time, location and manner restriction that courts allow for First Amendment activities such as protests and rallies.
Justice Samuel Alito made some unusual arguments against New York's law. He suggested that the law was racist against Irish and Italian immigrants who arrived in New York about a century ago. The statute is inherently elitist, he claimed, because it is harder for ordinary citizens to obtain a concealed carry permit.
Alito stated that celebrities, retired police officers and state judges have the right to use self-defense. However, this is not the case for ordinary people who feel the need to defend themselves with a gun.
Barbara Underwood, New York Solicitor General, acknowledged that permits for carrying a gun to hunt or target shoot are readily available in New York. However, permits for self-defense are more difficult to find, especially in urban areas. She said that allowing any Manhattan worker to carry a gun at night would lead to the flooding of the subways with weapons, raising the specter of an armed population in an enclosed space.
Although some justices recognized that constitutional rights don't apply differently in different parts of the country, others saw valid reasons to distinguish between urban and rural areas in the context of gun rights.
Although it seems obvious that there should be a different gun system in New York than Wyoming, it is difficult to make this work with our concept of constitutional rights. It is not something we would ever dream of doing for the First Amendment.
Brian Fletcher (Deputy Solicitor General), a lawyer for the Biden administration encouraged the justices adopt such an approach to guns given the country's long tolerance for widely differing gun regulations. Fletcher stated that the Second Amendment is a unique tradition and has a rich history.
Clement's most interesting line during Wednesday's arguments was perhaps his paraphrase of a famous dialogue from When Harry Met Sally in which he stated that his clients want the same permitting system as other states. This allows applicants to carry a gun for self defense unless there are grounds to deny it.
Clement stated that the case's central theme is "We would like what they are having."
The case will be decided by the end June or early July.
