Bloomberg Law
Nov. 16, 2021, 9:00 AM

New York’s Gun Law and the Supreme Court—What Is There to Fear?

Candace McCoy
Candace McCoy
John Jay College of Criminal Justice

The U.S. Supreme Court heard arguments Nov. 3 in a case challenging New York’s gun licensing law as a violation of the U.S. Constitution’s Second Amendment’s “right to bear arms.”

Applicants for a concealed-carry license in New York must show they have a special need for it. The statute doesn’t define this, but courts in the state have ruled that it requires applicants to show a particular reason for heightened protection, more than the general public has.

The law has been on the books for nearly a century, during which time licensees have included such categories of people as divorcees worried about violent exes, retired police officers and detectives worried that the bad guys they helped indict will track them down, or people whose jobs require them to be in dangerous neighborhoods at odd hours.

The licensees do not include people who simply feel it is a good thing to carry a handgun on their persons or in their vehicles, though in many other states these people would much more easily receive licenses to carry.

The New York State Rifle and Pistol Association, a National Rifle Association affiliate, and two state residents challenged the law. The appellants are relying on the high court’s 2008 case of Heller, where Justice Antonin Scalia’s majority opinion made clear that personal protection is the reason the public has a constitutional right to own firearms.

The Heller majority relied on its readings of colonial and Reconstruction history to decide that having guns in the home is as old as the Republic itself—originalism reveals the right to have guns in one’s home. Scalia and Justice Clarence Thomas both alluded to the threats to his physical safety that Heller feared and his “right to self-defense” using his guns.

The question now is whether this right to have a gun in the home will be extended to having a gun on the streets when people fear for their personal safety in public as much as Heller did when at home, and by extension whether they may carry guns in public to defend themselves against the attacks they fear.

Are such fears rational? Of course this is not the question the court will decide. Still, it is difficult to ignore the alarming spike in murders in cities both large and small all around the nation, or the tremendous gun-buying spree that occurred in the run-up to the 2020 presidential election.

An Arms Race Driven by Fear?

Americans of all genders, races, income levels, and political persuasions are armed, so arguing about licensing laws now seems almost quaint. But the court has said that the “right to self-defense” is at stake, prompting thoughtful persons—which surely the justices of the Supreme Court are—to question why defending oneself has become such an obsession in the first place.

Apparently Americans are engaged in an arms race where mutually assured destruction is held off only by the deterrent thought that the person against whom you will exercise your right to self-defense might have a bigger gun or be a better shot than you. The Wild West in 1821 looks tame compared to the U.S. in 2021.

Justice Amy Coney Barrett recently made a speech stating that her “goal today is to convince you that this court is not comprised of a bunch of partisan hacks.” However, the gun rights cases seem to cleave the justices cleanly into gun control versus gun rights camps closely paralleling partisan divides.

Numerous amicus curiae briefs submitted in the New York case urge the justices to take account of the alarming rates of gun ownership both legal and illegal in the nation today—guns that might be seen as “defensive” but surely present just as much likelihood of offensive, aggressive use that in turn raises the circular argument for self-defense.

An Uptick in Gun Violence and Homicides

Alarmed law enforcement officials and grieving families point to interpersonal violence among young Black men in impoverished neighborhoods currently killing each other in numbers not seen since the 1970s. Guns are cheap and easily available to them because firearms are scarcely regulated.

The Supreme Court announcing now that there is a right to carry in public might border on the tone-deaf, but if the court insists that self-defense is as important in the streets as it is in the home, the underpinnings of its thin Second Amendment jurisprudence will preclude concerns about what is actually happening in these neighborhoods.

Ta-Nehisi Coates writes in his best-selling book Between the World and Me that “a great fear, wide as all American generations,” that violence against Black people like him and his son will occur randomly. Coates, when commenting on his book on PBS, said this “deep-seated fear of bodily harm . . . never leaves. In fact, it marks African-American life. It may be the premier marker of the black experience under white supremacy in this country.”

Similarly, White Americans claim to rely on their guns because they must defend themselves, presumably against a wide variety of attackers, some of whom many Whites imagine will be Black.

In this climate of widespread but seldom-acknowledged fear, the Supreme Court will parse the meaning of “self-defense” with firearms. This cannot be an originalist exercise on the meaning of well-regulated militias. It must acknowledge what guns mean to Americans today.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Candace McCoy is a professor of criminal justice at the Graduate Center and John Jay College, City University of New York. She has also served as director of policy analysis for the Inspector General of the New York City Police Department. She is the author of “Politics and Plea Bargaining.”

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