The Daily - A Case That Could Transform America’s Relationship With Guns

Episode Date: November 8, 2021

The U.S. Supreme Court is gearing up to rule on an area of the law that it has been silent on for over a decade: the Second Amendment.The case under consideration will help decide whether the right to bear arms extends beyond the home and into the streets.The implications of the decision could be enormous. A quarter of the U.S. population lives in states whose laws might be affected.Guest: Adam Liptak, a reporter covering the Supreme Court for The New York Times.Sign up here to get The Daily in your inbox each morning. And for an exclusive look at how the biggest stories on our show come together, subscribe to our newsletter. Background reading: A New York law, which imposes strict limits on carrying guns in public, faced a skeptical reception from the Supreme Court last week. Their questions suggest that the law is unlikely to survive.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Sabrina Tavernisi. This is The Daily. Today, the Supreme Court heard arguments in the first major gun case in more than a decade. I talked to my colleague, Adam Liptak, about how the justices might rule and what that will mean for guns in America. Plus, the trillion-dollar infrastructure bill has finally passed. It's Monday, November 8th. Adam, it's nice to see you. And you.

So Adam, tell me what the basic facts are of this case. So two men in upstate New York wanted to get licenses to carry handguns most anywhere. Robert Nash and Brandon Koch applied for a license, and they were told, yes, you can have licenses to do target practice and go hunting, and one of them was allowed to carry a gun to and from work, but they were denied the right to have a handgun anywhere, and they sued, and they said that violated the Second Amendment. Why were they denied? How does the law actually work in New York? New York, like about seven states, requires you to demonstrate a proper cause to carry a gun.

What does proper cause mean? Well, that's an open question. Proper cause means you have a better reason than the average citizen. Maybe you work in the Diamond District and you're carrying goods back and forth. But if you just want a gun as a general matter for self-defense, for no particular threat, but in a dangerous world, New York will generally turn you down. New York will say, no, you don't have a good enough reason. You don't have a special reason. You don't have an atypical reason. And that system of licensing guns for public carry is not unusual. California has it, Hawaii, Maryland, Massachusetts, New Jersey, Rhode Island, about a quarter of the population of the U.S. And of course,

some of these places have big, big urban areas. Okay, so they're denied this license to carry a concealed weapon anywhere because they haven't shown that they have this special need. Where does the case go next? In the lower federal courts, they lose. The lower federal courts say New York is entitled to regulate guns. The guns are dangerous in themselves. is entitled to regulate guns. The guns are dangerous in themselves. And there's good reason to think you shouldn't let anyone anywhere have a gun, even for the stated purpose of self defense. And it goes to the Supreme Court, which had in 2008, kind of revolutionized Second Amendment law in a case called District of Columbia against Heller, which did one big thing and one small thing.

The big thing that it did was maybe partly symbolic, was it said people have an individual right to own guns untied to militia service. Let me read you the text of the Second Amendment. Okay. It says, a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. And for the longest time, people thought that that first clause, the militia clause, told you what the amendment was about. You know, you have a right to keep and bear arms in connection with service in a state militia. Got it.

And the structure of the sentence could easily be read that way. But the Supreme Court in 2008 said, no, that's not the right way to read it. The introductory phrase is illustrative of one reason you might have a right to keep and bear arms. But a reason, perhaps the main reason, is for self-defense. So that's a big change in the understanding of the Second Amendment. At the same time, it did only a small thing. It applied that principle that you have an individual right to keep and bear arms to the home. And it said that a DC law that made it all but impossible to have a handgun in the home for self-defense was no good. And that's

essentially everything the Supreme Court has told us to date about the scope of Second Amendment rights. So this new case, which leaves the home and asks the question of what's the scope of the Second Amendment outside the home, is an enormous question. Okay, so Adam, let me make sure I understand. So Heller essentially says that the Second Amendment gives any individual the right to have arms as self-defense in the home. It doesn't have to be connected with a militia. They have that right, period, whether they're part of a militia or not. Right.

But it was narrow in the sense that it was only talking about guns in homes. It didn't go outside the door of the home at all. So the whole question of what you can do and how states can regulate outside the home is completely unsolved law. It's open field, yeah. And the lower courts have disagreed about what the Second Amendment has to say about guns outside the home. So this new case with these two guys in upstate New York is about whether you can have a concealed weapon as a right to self-defense outside the home. That feels huge. Oh, it's big. This case, but for a couple of, I guess, maybe even bigger abortion cases this term, would be a blockbuster in any term, and the consequences will be huge.

It will affect a quarter of the population of the United States, and it will represent the court's return to an area where it's really been silent for over a decade. And also bear in mind that we now have a supercharged six to three conservative majority. And what the court does here may well transform the relationship between Americans and guns. So I was particularly interested in the oral argument in the case to get a sense of where, after all these years, the justices were going on this issue. We'll be right back.

We'll be right back. So Adam, last week when the justices heard arguments on this really high stakes gun case, how does it start? The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. So the justices come in, or eight of them do. Justice Gorsuch is participating remotely this morning. Justice Gorsuch is home with a stomach bug, and he is participating remotely. And we will hear argument this morning in case 2843, New York State Rifle and Pistol Association versus Bruin. The case promptly gets underway.

Mr. Clement. Mr. Chief Justice, and may it please the court. Paul Clement, who represents the people seeking gun licenses from upstate New York, gets up. He's a very accomplished advocate. He's a former United States Solicitor General, and he makes this basic point. The text of the Second Amendment enshrines a right not just to keep arms, but to bear them. And the relevant history and tradition, exhaustively surveyed by this court in the Heller decision, confirm that the text protects an individual right to carry firearms outside the home for purposes of self-defense. He says the Second Amendment guarantees a right in the Bill of Rights, like the First Amendment, like the Fourth Amendment. It is not some extraordinary action that requires an extraordinary demonstration of need. You shouldn't have to ask the government for permission to exercise a right.

It is the difference between regulating constitutionally protected activity and attempting to convert a fundamental constitutional right into a privilege. That would turn it into a privilege, he says. If the Second Amendment right is a real right, it can't be that most people in New York are not allowed to exercise it and have to go to a government body to try to come up with some justification for exercising what he says is a right in the Bill of Rights. That is not how constitutional rights work.

So essentially he's saying, look, it's settled law that having a gun is a right. But in New York, by making it so hard to actually get a license, by essentially forcing the person to prove that they need it, that's not really a right anymore. That has effectively turned it into a privilege. And that's wrong. Yes, that's quite right. One way to think about it is, if this is a right like the First Amendment right to free speech or the First Amendment right to free exercise of religion, those are not rights that require you to go to a government body and say, I have a good reason, I need to exercise this right, and it's different and better than the other guy's reason. We would all agree, I think, that those rights are just rights you possess, and you don't need someone's permission to exercise them.

So if Clement is right, but this is a big if, that the Second Amendment right applies to carrying guns outside the home, the rest of his argument follows neatly from that. Okay, so how do the justices respond to Clement's argument? Okay, so how do the justices respond to Clement's argument? Is it supposed to say you can carry a concealed gun around the streets of the town or outside just for fun? I mean, they are dangerous guns. I mean, so what's it supposed to say? Well, some of the more liberal justices, like Justice Stephen Breyer, are confused. We're asking that the regime work the same way for self-defense as it does for hunting. I don't have to say I have a better reason to go hunting than anybody else in my general community.

Well, the difference, of course, you have a concealed weapon to go hunting. You're out with an intent to shoot, say, a deer or a rabbit. But here, when you have a self-defense just for whatever you want to carry a concealed weapon, you go shooting it around and somebody gets killed. And can't really quite get why it should be that as a general matter in New York anyone can have a gun anywhere. Mr. Clement, in your opening you talked about the right applying in any location typically open to the general public. Other justices, the more conservative justices, seem quite persuaded by Clement's general point.

I'd like to get some sense about what you believe could be off limits. But they wonder whether there's not something that could be done to make sure we don't have guns everywhere. And they draw on a passage in the Heller decision which says you can regulate guns, you can bar guns from sensitive places. If it's a place like a courthouse, for example, a government building where everybody has to go through a magnetometer, that would qualify as a sensitive place. Like schools and government buildings. But the justices now have all kinds of ideas about where else you might be able to bar guns. New York City subways. The subway.

University campuses. College campuses. We just say Times Square on New Year's Eve is a sensitive place. Times Square on New Year's Eve. a sensitive place. Times Square on New Year's Eve. The place in which alcohol is served. Places where alcohol is served. And they pepper Clement with these ideas about, well, couldn't New York bar guns in all these sensitive places? So, Mr. Chief Justice, I think probably the right way to look at those cases would be look at them case by case and say, OK.

And he's quite reluctant to engage. This is not the argument he wants to have. Sensitive places include government buildings and schools. I think those you can probably tap into a pretty good tradition. He concedes that, yes, some sensitive places can be regulated. You can bar guns in some places. Restriction of access to the place is something that I think would be consistent with the way government buildings have worked and schools have worked. He doesn't want to get into the particulars. He says those are decisions to be made in later cases.

But you see the conservative justices drawing a distinction. They're not happy about regulating people, but they seem open to the broad regulation of places. And they seem to think that might be a kind of compromise. Let people, as a general matter, have licenses to carry guns in public, but really shrink down what we mean by in public. So basically what this New York law says is that people are allowed to have concealed guns for self-defense outside the home if they've passed some sort of test that proves that they're a special case. But what Clement is saying, and what the conservatives seem to be on board with is that there could just be a rule against guns at Yankee Stadium, regardless of who you are. So in other words, it shouldn't be a rule limiting people, a rule limiting individuals.

It should be a rule limiting which places are allowed. Right. And Clement says he's not asking for anything radical. Forty-three jurisdictions allow their citizens to have the same rights that my clients are looking for. He says 43 states already do it this way and generally issue licenses, or don't even require licenses, for people who want to carry guns in public. And he says... Those 43 states include very large cities. Those states include major urban areas.

Like Phoenix, like Houston, like Chicago. Like Chicago. In this case... I mean, most people think that Chicago is like the world's worst city with respect to gun violence, Mr. Clement. And that last point causes Justice Kagan to jump in and say Chicago is maybe not the best example. Perhaps not the best choice of cities for Clement. Right. I think he probably regrets that particular example.

Thank you, counsel. I think he probably regrets that particular example. Thank you, counsel. Okay, so what is the other side's argument? What's New York saying? General Underwood. Mr. Chief Justice, and may it please the court, for centuries, English and American law have imposed limits on carrying firearms in public in the interest of public safety. So Barbara Underwood, New York Solicitor General,

says there's a long history of letting states regulate guns outside the home. And that history matters because the conservatives, as a general proposition, look to what the founding generation thought the Constitution meant, what its original public meaning was. The history runs from the 14th century Statute of Northampton, which prohibited carrying arms in fairs and markets and other public gathering places. And there's lots of historical evidence, starting with the Statute of Northampton in 1328, which said you can't go armed to markets and fairs. To similar laws adopted by half of the American colonies and states in the founding period.

And through the colonial era and through the early states, in which there was indisputably substantial historical evidence that the colonies and states did regulate guns in public. And Barbara Underwood says... New York is not an outlier in the extent to which the state restricts the ability to carry firearms in public, and it's not an outlier in asking a license applicant to show good cause for a carry license. That should be enough reason to let some states do it their way

and other states do it their way, that we don't need a uniform rule for this. So how do the justices respond to that argument? Her argument doesn't seem to get a lot of traction with the conservatives who view the history as contested and in one sense already settled by the Heller decision and something they're not eager to revisit. General Underwood, you seem to rely a bit on the density of the population. What they are quite curious about is why New York State seems to be much more apt to grant you a license if you're in a rural area rather than in an urban area like New York City.

Now, Heller relied on the right to defense as a basis for its reading of the Second Amendment. I would think that arises in more populated areas. If you're out in the woods, it's pretty unlikely that you're going to run into someone who's going to rob you on the street. So for instance, Chief Justice Roberts says that he's not sure you have a real need for a gun for self-defense in upstate New York. He says — Well, how many muggings take place in the forest?

How many muggings take place in the forest? How many do you think? His suggestion being that the places that are dangerous where you might need a gun for self defense are in urban areas or the subway late at night. Now, a counter argument might be that you're much more likely to have law enforcement presence in an urban place than a rural place. But it's also the case that there's a great deal of gun violence in urban centers. So the arguments kind of cut both ways. General, you know, one of the things that strikes me about this area. And Justice Kagan, a liberal, says that it's a hard thing to match with our notion of constitutional rights generally. I mean, that level of local flexibility... It would be odd to have a constitutional right

kind of have different force depending on what part of the state you happen to live in. Right. So the justices are kind of poking holes in this idea of the law being applied differently based on population density. So how does Underwood respond to that? If you go right to history and tradition, the history was to regulate most strenuously in densely populated places. That's what fairs and markets are. Her larger point is that guns are different in big cities. But we also have a rationale for that history, which is that where there is dense population, there is also the deterrent of lots of people. And there is the availability of law enforcement. You may have

less need for self-defense because there's law enforcement and police officers and transit police available to defend you in the city. And in areas where people are packed densely together, as the questioning displays, the risks of harm from people who are packed shoulder to shoulder, all having guns, are much more acute than they are. And that having lots of guns around is itself a threat to public safety. So if I'm understanding you correctly, Underwood, the lawyer on the New York side, is saying that in a populous city with all these people cheek by jowl, a gun is more of a threat than it is a protection. And if you want to make the case that you need one, you better have a really good reason. That captures her point, yeah.

I'm not sure it persuaded most of the justices, but that's what she said. So I want you to think about people like this, people who work late at night in Manhattan. Justice Alito, for instance, pressed her on this. Justice Alito, for instance, pressed her on this. He asked about workers in Manhattan, say, who work late, a hospital orderly, a doorman, you know, the people who clean office buildings and have long commutes home through dangerous areas, having gotten out of work late to the outer boroughs. And they apply for a license and they say, look, nobody has said I am going to mug you next Thursday. However, there have been a lot of muggings in this area, and I am scared to death.

He suggested that they may well have a reason to want to have and should have a gun for self-defense. And he asked Barbara Underwood. They do not get licenses. Is that right? Is that a good enough reason? Would they get a license? That is, in general, right, yes. If there's nothing particular to them, that's right. And she candidly said no. And I have a feeling that that exchange resonated with the justices on the right side of the court, who probably would have liked a different answer.

Thank you, counsel. The case is submitted. Thank you, counsel. The case is submitted. The honorable court is now adjourned until Monday next at 10 o'clock. So, Adam, I want to step back and think a little bit about what this all means and what it means for gun rights in America. It feels like there's a kind of fundamental disagreement playing out here about how people see guns, right? At a basic level, one side sees guns as protection and a critical individual right. And on the other side, guns are seen as a potential threat. And this side believes it's warranted to put limits on that right. Is that how you see this case?

Absolutely. I think this is one of a zillion examples of the way Americans are polarized across many, many issues and simply have a fundamental, irreconcilable difference of opinion about whether a gun keeps you safe or is a danger to the community. And, you know, the justices split along the lines of public opinion, as you would predict by the parties of the presidents who appointed them. And this is one of those many gaps that's really hard to overcome. Justice Alito, for instance, said there are lots of guns in New York City already. It's just that they're illegal. The bad guys have them. Why shouldn't law-abiding citizens be able to have them? Other justices

on the left seemed terrified by the idea that major urban centers would be overrun by guns, whether licensed or not. Right. So what's going to happen then? How are the justices going to rule on this? I'm almost certain that the New York licensing law will get struck down. How broadly they do that is an open question. How broadly they do that is an open question. They could say, I suppose, that it's too strict, but you can require people to make some kind of showing that they're entitled to have a gun. I think more likely the court will just say something like, if you don't have a criminal record, you're allowed to have a gun in public in seven or so states where you currently can't without showing a special reason. And that would make the country uniform on this point. Okay, so if they strike down this New York law, they'd be doing that because the majority of the justices think it's just unconstitutional to deny some people access to guns simply because they haven't made a good enough case for why they need them for self-defense. Right. And then there's the question about what they do about sensitive

places, which are not directly implicated in the case. It's not part of what the justices agreed to decide. But it was such a big part of the argument that you could imagine there would be a substantial aside, as there was in the Heller case, about things that we're not talking about today, but which may well be within New York's right to do. So it may be that the music of the decision will include a lot about, here are the kinds of places where you can bar guns from, and that may dampen the effect of the decision to some extent. What do you mean by that, Adam? I mean, it could send two simultaneous messages. One, that as a general matter,

everyone should have a right to have a license to have a gun wherever they want to go. But that wherever they want to go can be strictly limited by the state to exclude places where large numbers of people gather. And so in that sense, it would dampen the effect of the first part of the decision. It sounds like you're saying they'll strike down the New York law, but it will remain unsettled exactly how local governments figure out what constitutes a sensitive place, what constitutes places where you cannot carry a gun. Right. And at its broadest level, you know, I think the most conservative justices were afraid the answer would be, well, what about Manhattan is a sensitive place? What about any place where large numbers of people

gather where there's a substantial law enforcement presence? So that may be the next battleground for Second Amendment rights. Got it. In another 10 years' time. Every 10 years or so, we got a good Second Amendment case. I mean, if you're right, Adam, this would be very momentous. I mean, it'd mean a huge expansion of gun rights in America, where states like New York would no longer really be able to have stricter gun laws than the rest of the country. That's right. The Heller decision was a big deal, but in some ways symbolic. The right to have a gun inside the home is much less controversial than the right to have guns everywhere. And this looks like it's going to be a two-step triumph for gun rights groups, which got the court to endorse an individual right to own guns in a setting that doesn't particularly bother many people, that you should have a gun

in your home to defend yourself. But many of those same people would have a different answer if you ask the question of do they want people carrying guns everywhere? So this second step of the Second Amendment litigation move is really enormous. And again, if I'm right, it will move what was a symbolic decision in 2008 into a very consequential and practical one come June when most big Supreme Court decisions land. Essentially, this question of whether one can have a right for self-defense has lived inside the home, been affirmed inside the home, and has now opened up the door and walked outside into the world. Yes, that's right. Adam, thank you. Thank you, Sabrina. We'll be right back.

Here's what else you need to know today. On this vote, the yeas are 228 and the nays are 206. The motion is adopted. After months of negotiations and delays, the House of Representatives has passed a $1 trillion infrastructure bill, the final step in delivering a key part of President Biden's economic agenda. The bill, the largest investment in infrastructure in a decade,

will finance roads, bridges, railroads, and highways, internet access, improvements to the U.S. power grid, and the protection of communities against climate change. Passage was uncertain until the very last moment on Friday. In the end, 13 House Republicans defied their leadership by voting for the bill, and six House Democrats defied their leadership by voting against it.

Finally, infrastructure week. I'm so happy to say that. Infrastructure week. After the vote, President Biden celebrated the bill's passage in a speech from the White House, saying it showed skeptical Americans that government can still work. They want us to deliver. They want us to deliver. Democrats, they want us to deliver. Last night, we proved we can. On one big item, we delivered. Today's episode was produced by Lindsay Garrison, Robert Jimison, Claire Tenesketter, and Daniel Guimet. It was edited by Paige Cowett, engineered by Chris Wood, and features original music by Dan Powell.

Our theme music is by Jim Brumberg and Ben Landsberg of Wonderly. That's it for The Daily. I'm Sabrina Tavernisi. See you tomorrow.