BY TALIB VISRAM on fastcompany.com
Accustomed to relatively strict gun laws, New Yorkers watching mass shootings unfold across other parts of the country in recent years may have felt somewhat invincible to indiscriminate gun violence. April 12 was a wake-up call, when a gunman started shooting at passengers on a subway car in Brooklyn during a morning commute. Now, a landmark Supreme Court case that’s due for a ruling this summer could compound fears of more, similar gun violence in crowded city spaces.
The case, the most significant on the Second Amendment in 14 years, puts into jeopardy New York State’s tight restrictions on carrying guns in public. Based on the direction of justices’ questions during oral arguments last fall, it appears likely that the conservative court will strike them down as unconstitutional as early as June, forcing the state to drop public safety regulations, and possibly to start issuing concealed carry permits. While there’s no database that tracks gun crimes by concealed permit holders, more mass shootings do tend to occur in states with more relaxed gun laws, including permissive carry rights. The ruling could also have broader implications for other states’ gun regulations.
In New York State Rifle & Pistol Association Inc. v. Bruen, plaintiffs filed a lawsuit against New York State police, who denied their concealed carry permit requests, claiming they didn’t have “proper cause.” New York has one of the strictest gun laws in the country: In place since 1913, it says that officials may grant concealed carry permits only if applicants can demonstrate “proper cause” to carry beyond reasons of general safety, which may include working as a security guard or having experienced legitimate death threats. New York is one of only nine of these so-called “may issue” states, all of which have among the lowest gun death rates in the country. Consistently, more permissive gun laws have meant more guns, and in turn more gun violence and deaths.
The case currently before the Supreme Court “really has the potential to totally upend the system that New York has had in place for over 100 years,” says David Pucino, deputy chief counsel at Giffords Law Center, which filed an amicus brief in the case. Should the court rule in favor of the plaintiffs, it would strike down New York’s stringent law and potentially allow anyone to obtain a concealed carry permit; an even broader ruling could open the floodgates to revisiting a host of other common-sense gun laws. It’s the most significant Supreme Court case to determine the fundamental intent of the Second Amendment since 2008’s District of Columbia v. Heller, where the court ruled that D.C.’s handgun ban was unconstitutional because the Second Amendment permits self-defense in the home. But Heller didn’t address the right to carry guns outside the home; this case explores exactly that.
“THT” AND “SENSITIVE PLACES”
Since Heller, the public carry question has been brewing in lower courts, most of which have upheld restrictions, citing public safety considerations. However, the Supreme Court may not use such considerations. Instead, the proponents of originalism on the court, of which there are at least three, may use the “text, history, and tradition” test (THT), which uses the pure text of the Second Amendment, and historical precedent. It’s an “extreme test,” says Eric Tirschwell, executive director and chief litigation counselor of Everytown Law, the litigation team affiliated with Everytown for Gun Safety—and one that the gun lobby favors.
Nevertheless, during oral arguments last November, Chief Justice John Roberts suggested the argument that urban areas should have fewer guns did not make sense. When New York State’s solicitor general, Barbara Underwood, argued that “the risks of harm from people who are packed shoulder to shoulder, all having guns, are much more acute” than in rural areas, Roberts countered: “Well, how many muggings take place in the forest?”
Others, notably Justice Amy Coney Barrett, did suggest that some pockets of New York City should have restrictions. In Heller, the court ruled that there are still “sensitive places,” like schools and government buildings, where people shouldn’t be allowed to carry guns. “Can’t we just say Times Square on New Year’s Eve is a sensitive place?” Barrett asked. “People are on top of each other, [and] we’ve had experience with violence.” Many states with permissive carry list multiple sensitive locations where bringing a gun is illegal. The justices also discussed the NYU and Columbia campuses as possible exceptions; Roberts suggested “anywhere where alcohol is served,” as well as the Giants Stadium (though that’s actually in New Jersey).
SHOWDOWNS ON THE SUBWAY
Then, there is the subway—a confined space with no escape routes. Yet, Justice Samuel Alito cited the subway as the very place people needed arms for protection, and used the presence of illegal guns in the city to justify a need for more arms. He described the hypothetical plight of a late-night worker in Manhattan, like an office cleaner or doorman, who returns home on the subway and is worried about muggings, but may not be allowed a permit if the subway were deemed a sensitive place. “How is that consistent with the core right to self-defense, which is protected by the Second Amendment?” Alito asked.
But while the pro-gun lobby preaches that a “good guy with a gun” can take down the bad guy, that scenario is incredibly rare, Pucino says. Take the case of the subway shooting: If multiple people had started firing amid the smoky haze, and without the adequate training in a high-pressure situation, “it’s just going to be more people who are going to be hit with gunshots,” he says. That also jeopardizes the law enforcement response, Underwood argued during the hearings. “They now can’t tell who’s shooting, and the shooting proliferates and accelerates.”
“His vision was this apocalyptic place where there’s criminals at every corner who are waiting to mug you,” Pucino says. “Perhaps a vision of New York City that’s more based on movies than actually being in the subway.”
Gun violence in New York City has already surged since the onset of the pandemic. In January 2022, gun crime had increased by a third versus January 2021; in the first half of 2021, there were more shootings in New York City than in the previous decade. And, in one weekend in March 2022, 29 people were shot, including at a bar in Queens, and on a subway platform in Brooklyn. “I think most New Yorkers who commute on the subway, as I do, want that to be a space where there aren’t guns,” Pucino says.
Advocates also argue that concealed carry fosters a “shoot-first” culture when confrontations occur. Research from the Violence Policy Center calculates that at least 1,358 non-self-defense killings by concealed carry permit holders took place between 2007 and 2019, including 35 mass shootings. “The court should not endanger public safety even further by adopting this radical interpretation of the Second Amendment,” Tirschwell says.
RAMIFICATIONS OF THE RULING
Even if the court rules in favor of the plaintiffs, it’s hard to predict how broad its decision may be. A narrow ruling could involve striking down the “proper cause” requirement for a permit. New York would struggle to restrict guns in public, and may have to start issuing concealed carry permits. The ruling may also extend to the remaining nine may-issue states, including California, Maryland, and Massachusetts, at a time when gun violence is rising across the U.S. Still, this is the best-case scenario.
If the ruling is more expansive, it could ditch the entire public-safety framework that lower courts have been using to uphold carry restrictions. It could provide a whole new basis for future decisions—on all kinds of gun regulation lawsuits currently in limbo, and supported by the gun lobby, relating to assault weapons bans, large-magazine bans, and the minimum age for the sale of handguns. They could fundamentally redefine the Second Amendment and change America’s gun laws.
“That could be a really devastating decision that could have wide-ranging—and I think, not currently fathomable—impacts,” Pucino says. “Because, it potentially could mean that every gun law on the books is called into question.”