Gun Violence Continues as SCOTUS Ruling in N.Y. Gun Case Nears

Before the families of the 10 victims killed at a Tops Friendly Market in Buffalo, N.Y. could finish burying the dead, another tragedy stunned the nation—19 elementary school children and two of teachers gunned down in Uvalde, Texas. More than 30 dead a mere 10 days apart.

And with that, the two cities—though nearly 2,000 miles away—became inextricably linked on a very long list of the nation’s worst mass shootings. Columbine. Virginia Tech. Sandy Hook. The Charleston church shooting. The Pulse Nightclub. Parkland. The Tree of Life Synagogue. The names evoke images of mass murder, abject frustration, and deep sympathy. And of guns—usually assault rifles. We mourn. We gather at wakes and funerals. We sit shiva. Until the next time.

That the two most recent catastrophes occurred in states—New York and Texas—at polar opposites of the spectrum for gun restrictions, is not an irony, but an indication of the enormity of the challenge presented by the questions posed by racial animus, the digitized world, free speech, and the secret radicalization of individuals in a society that values gun rights. Compounding the problem is that the solution must be found in the most free, open, pluralistic, democratic society on the planet.

A society, by the way, in which there are an estimated 400 million privately owned guns—a number augmented by manufacturers at a rate of 11 million new weapons per year—roughly three times that at the beginning of the millennium.

Pending Supreme Court Ruling

But as much as governors and legislators demand relief, issue executive orders, and pass laws, nothing changes. And any sober analysis would suggest that things may soon get worse because within the next month, it appears that the third branch of government will be aggressively moving at cross purposes to the cries of government’s competing branches.

Pending in the US Supreme Court is New York State Rifle and Pistol Association v. Bruen—a lawsuit challenging the licensing requirements for carrying a concealed weapon in public. And, if oral arguments conducted before the high court are a harbinger of what is to come, New York’s restrictive gun laws are about to become far more gun-friendly.

The Empire State is one of a handful that require individuals desiring to publicly carry a concealed pistol to demonstrate “proper cause” to be licensed. Plaintiffs posit that under the 2008 landmark decision, District of Columbia v. Heller, states cannot burden individuals by requiring them to justify their enjoyment of freedoms associated with the Second Amendment. To do so, quoting Justice Clarence Thomas, reduces the Second Amendment to disfavored status—a result the Constitution cannot countenance.

As plaintiffs’ counsel, former Solicitor General Paul Clement, summarized, “In a country with the Second Amendment as a fundamental right, simply having more firearms cannot be a problem.” To almost all observers, that proposition appeared to garner the approval of a majority of the court, and if it should become central to the court’s decision—despite the wishes of the co-equal branches of government to restrict gun possession—the harsh reality may prove quite different.

So many questions remain unanswered, and it is unclear if the court’s decision will address them all. Will the court extend the rights enjoyed by individuals under the Fourth, Fifth, and Sixth amendments to the Second Amendment, protecting gun owners from illegal searches and self-incrimination and ensuring due process and the right to counsel? If so, what practical impact will that have on law enforcement?

Might the court itself be moved by the latest tragedies and rule more narrowly, thus sparing some of New York’s restrictions? If New York’s statutory regulations fall, will anything replace it?

Will the court provide guidance to legislators crafting new laws? Will the courts permit restrictions of guns at places like schools or trains or football stadiums?

New York Acts, But National Solution Is Elusive

Historically in New York, the executive and legislative branches are quick to act. Within a month of Sandy Hook, New York passed the NY SAFE Act, which restricted the sale and possession of assault rifles and high-capacity magazines.

Shortly after Parkland, New York’s version of the “Red Flag” law—one to disarm the mentally or emotionally vulnerable or to prevent the sale to them—was implemented. And within days of the Tops Market shooting in Buffalo, N.Y. Gov. Kathy Hochul (D) signed executive orders designed to address gaps in the “Red Flag” law that became clear as investigators probed the shooting.

Depending, however, on the sweep of the court’s ruling, a state that wants to address mass shootings may be severely limited in the steps it can take. Ironically, should public officials find the will to solve this problem, they may well be thwarted by the lack of means to do so.

A rational answer that appeals to the different Americas—rural, urban, and suburban—and policy that adequately meets the needs of public safety while satisfying the interests of government’s three branches has so far proven elusive.

Sadly, it appears that before a consensus is reached, another city, church, or school will join that tragic roster.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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David Louis Cohen is the chair of the New York State Bar Association’s Criminal Justice Section. His practice consists primarily of representing those accused of crimes in both federal and state courts. Cohen was a member of the New York State Assembly and was counsel to Assemblyman Joseph R. Lentol (D), chair of the Assembly Codes committee.

Robert J. Masters, special assistant district attorney to the Rockland County District Attorney and immediate past chair of the NYSBA Criminal Justice Section, served as a special assistant district attorney to Queens County District Attorney, the late Richard A. Brown (D) from 1990 until 2019.