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Understanding SCOTUS’s New York Gun-Control Ruling

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Understanding SCOTUS’s New York Gun-Control Ruling

10 Blocks podcast June 30, 2022
New York
Public safety
Politics and law

Nicole Gelinas, Rafael A. Mangual, and Robert VerBruggen join Brian Anderson to discuss the Supreme Court’s ruling in NYSRPA v. Bruen, including its possible effects on public safety in New York City, the implications of its legal reasoning, and the likely response by city and state lawmakers.

Audio Transcript

Brian Anderson: Welcome back to the 10 Blocks Podcast. This is your host, Brian Anderson, the editor of City Journal. Joining me on today's show are three Manhattan Institute colleagues, here to discuss the recent Supreme Court ruling on gun laws in New York State. We have Nicole Gelinas, she's a senior fellow at MI and a contributing editor of City Journal. Rafael Mangual, he's a senior fellow at MI, contributing editor of City Journal as well. And the head of research at the Institute's Policing and Public Safety Initiative. And Robert VerBruggen, a fellow at MI. So Nicole, Ralph, Robert, thanks very much for joining.

This case, titled New York State Rifle and Pistol Association, Inc v. Bruen, was obviously overshadowed by another big decision that the Supreme Court handed down this week, or last week. But that doesn't mean it's not significant, not only for what it means legally, but also for its implications practically on the streets here in New York City and State. It was a 6-3 decision with the Court striking down a New York State law that required applicants for concealed carry permits to prove a special need for self-protection.

So Ralph, as a lawyer, why don't you start by explaining the legal background here? What did this law mean in practice, and why did the Court's majority declare it unconstitutional?

Rafael Mangual: So I think a little background is in order here. So in 2008, the Supreme Court held for the first time in a case called Heller v. District of Columbia that the Second Amendment protected an individual right to handgun ownership in the home. That case was challenging a Washington, D.C. statute, which banned the possession of handguns, even for self-defense in the home. That was the first domino to fall in the Second Amendment context. And in 2010, we saw a case out of Chicago called McDonald, that held that the Second Amendment not only protected an individual right to keep and bear arms as enforceable against the federal government, which was the holding in Heller, but that the 14th Amendment had incorporated that Second Amendment right as enforceable against the states. And that's what opened the door for the challenge that New York faced in its court now.

In the years between McDonald and now, we saw lots of challenges to similar restrictions on the right to carry, most notably in the Seventh Circuit in the city of Chicago. There was a challenge to a similar regime in the city of Chicago that was struck down by the Seventh Circuit Court of Appeals. Now, the Supreme Court decided not to take up the case back then, but after a circuit split developed where you had some federal appellate courts holding that the Second Amendment did protect an individual right to carry, others holding that it didn't.

And then in between there, some disagreement on the standards by which courts could evaluate the constitutionality of restrictions on gun carriage. The Supreme Court finally decided in this case to take the issue up and what they were presented with was the following question, does the Second Amendment extend a self-defense right that goes beyond the borders of one's home. And they answered that question in the affirmative.

And so what New York was doing was they adopted what's largely referred to as a may-issue regime, whereby you have to apply for a permit to carry a gun, in this case concealed. And then there is discretion on the part of the regulatory authority to decide whether or not to grant you that right. And in New York, part of the exercise of discretion was based on whether you could make an individual showing of special need as to why you needed a firearm for self-defense in public.

What the Supreme Court was asked to decide was whether or not that was constitutional. And they held that it wasn't, mostly on the grounds that the Second Amendment's text, as informed by the history of the period at which the Second Amendment was ratified, that the Second Amendment actually extends to an individual's right to both keep and bear arms. And that there is nothing in the text of the Second Amendment or in the history that informs its interpretation that justified the kind of regime that New York had.

And So what we end up with now is a system in which New York is going to have to adopt what is called a shall-issue regime, which means that outside of reasonable restrictions, anyone that qualifies for a handgun permit will have to be granted that permit if they go ahead and apply for it. And so that's the legal regime. I think there's going to be further litigation to hammer out the details. I think you'll see cities like New York do their best to restrict the scope of that right in every way possible, limiting carriage to certain types of places. But that, I think, is a really major development in Second Amendment jurisprudence.

Brian Anderson: Thanks Ralph. Robert, you wrote an op-ed in the New York Post about the decision. New York City's density, you noted there, makes gunfire especially dangerous, and it seems to vitiate the self-defense justification for bearing arms, given the extensive nature of police coverage in the city. While it stands to reason that those concerned about violent crime might worry about what's coming, you wrote that New York residents shouldn't panic yet.

So what are some of the considerations, in your view, that counsel calm rather than concern here?

Robert VerBruggen: Sure. I mean, my point there is twofold. I mean, first of all, this is something that's going to be very new for New York City, and New York City isn't quite like anywhere else in the country. But this is a type of law that we have a whole lot of experience with in America. More than 40 states already went shall-issue. Overwhelmingly, they did this voluntarily without being ordered to by courts. And we have decades of research on the effects of these laws. And instead of having clear results that show that crime either increases or decreases thanks to these laws, we've basically had a decades-long spat in the academic literature over whether they do basically much of anything at all.

It's been very unclear that these have much of an effect one way or the other. You can certainly cite studies one way or the other. But if you look at the literature as a whole, it's very muddled, very unclear, with a lot of disagreement between researchers who use different methods. So to me, the first thing is that the type of law that the Court is requiring now is something that we have experience with, and that it certainly hasn't led to anything worth panicking over. It's not clear that this has a bad effect.

But the other thing is that because these other states did it voluntarily—I think they did it with a lot more enthusiasm than New York is going to do it—lot of them have very minimal restrictions. In fact, I recently moved and I'm getting a new concealed-carry permit in Wisconsin, where I moved to. All that's required in Wisconsin is you take a class that's a few hours long and send in your application and that's the end of it. But if you were to try to get a concealed-carry permit somewhere like D.C., which was forced into a shall-issue regime by a court decision, you have to take, I think it's 16, 18 hours of training and pay much higher fees. And your permit only lasts for a couple years before you need to get it renewed, which requires even more training.

So basically, even if these laws are having bad effects elsewhere around the country, I think New York has a ton of leeway to minimize their effect there. So what they can do is require extensive training. They can charge fairly high fees. And they can also just restrict the behavior of permit holders in various ways, including deeming more areas of the city sensitive, where guns are banned. They can encourage private businesses to not allow guns on the property and basically make it difficult for concealed carriers to go about their lives with their guns, so that they are more likely to leave them at home. So basically, I don't think that these laws have . . . I don't think there's any evidence, basically, that these laws are extremely harmful. And also to the extent that they are harmful, I think New York has a lot of leeway going forward to temper their effects.

Brian Anderson: Nicole, you've been more critical of the decision, or at least the implications of the decision. Writing, also in the New York Post, that it's going to be harder to prosecute gun crime, just as the Court's ruling pours a far larger number of guns into circulation. Assuming for the sake of argument that this decision does have a negative effect on public safety in New York City, it certainly comes at an inappropriate or difficult time for Mayor Eric Adams, whose Subway Safety Plan remains, so far, mostly theoretical. And whose tough rhetoric about curbing crime has proved that that's something easier talked about than actually done.

So how, in your view, Nicole, should the mayor navigate this ruling? And what do you think its implications are for his tenure?

Nicole Gelinas: Yeah. Thank you, Brian. I'm glad to be on the podcast again. I think there's two separate issues to think about in the Court's decision. One, the constitutional debate about how far do individual gun rights go. I'll leave that to other people to think about. And the other is, will the proliferation of guns make us safer, and will it make New York City safer in particular? And if you look at the firearm death rate in New York State and New York City, it's very hard to figure out what is the problem that we are trying to be solving here.

I mean, you can look at the rate of firearm deaths across the country. The states uniformly at the top with only a couple exceptions—Mississippi, Louisiana, Wyoming, Missouri, Alabama—all have homicide deaths rates that are five and six times the level in New York State and New York City. Even states that are in the middle of the pack—Florida, Wisconsin—still two and three times the level in New York State and New York City. So despite the increase in the murder rate that we've seen in the past two years, which is certainly greatly concerning, New York, in the state and the city level, is still vastly safer than the rest of the country when it comes to firearm deaths. Five firearm deaths per 100,000—very hard to see how we get much lower than that.

And we did this without making it easy to get a gun. I mean, we went from 2,200 murders in 1990 to closer to 300 in 2017, 2018. We did that really without resorting to the right of self-defense. We did that through improving civil society, including through police reform. So how does Adams address this new problem that has been handed to him by the Supreme Court? It's not going to be easy. I hope that Robert is right, in that we can do this with targeted enforcement and other measures, including designating certain places that are sensitive areas where you can't carry a firearm. The licensing requirements and so forth.

But it's hard to varnish the decision. The Court has essentially said that we have to be a shall-issue state, and likely a shall-issue locality. And so we will see what other places where gun proliferation has long existed have seen. People lose their guns. They leave their guns in their cars. They have their guns stolen from them. They sell their guns or lend their guns illegally to people who are not supposed to have them. And this contributes to gun violence. So what are some of the things that Adams can do in the rest of the state's legal infrastructure? Of course, go after people who are carrying illegal guns. The more guns in circulation, the more people we'll see carrying illegal guns.

But this will also be difficult to do in the political environments. You already have the Bronx defenders and the Brooklyn defenders saying, if it's going to be legal for people to carry guns, you can't go prosecuting black and brown people for carrying guns because they've got a felony record, other reasons why they can't obtain gun permits. Now, I disagree with that reasoning. The law is the law. If you're carrying an illegal gun, you should be prosecuted. But practically and politically speaking, it’s going to be very, very hard to prosecute illegal gun possession when there is more of that, and when we have normalized carrying guns and it is not seen anymore as an antisocial or aberrant behavior.

Brian Anderson: I wonder, Robert, you follow the gun issue pretty closely. You noted that the majority of states in fact have a similar ruling to what is now going to be legal in New York, or a similar legal arrangement. Do we see that kind of political pattern emerging, where minority perpetrators are presumed innocent, basically, or that it becomes harder to prosecute them for gun crimes, if it is the case that there's more people carrying guns around legally?

Robert VerBruggen: I mean, I don't think that's something that I've seen a whole lot of evidence for. One complaint I have heard, just here and there, is that in states that have—more than 20 states at this point have actually gone to what's called permitless carry, which means that it's not even a shall-issue regime, where you need to issue a permit. You don't even need a permit to carry it. I have heard some complaints from law enforcement saying that if you don't need a permit to carry a gun, it's harder for cops to intervene and stop people who are carrying illegally, because it blurs the lines a lot.

But in terms of if you have a shall-issue regime that says, these are the requirements to own a gun or to carry a gun. And you need to get this training and you need to pay this fee and you need to identify yourself and get a background check, to me at least, that seems very different from somebody who's just illegally carrying a gun without any authorization whatsoever and without going through the training. And that goes double if they're actually legally barred from doing so, because they have, for example, a felony record or something like that.

So I'm not as concerned as Nicole is about that. But it's obviously something, in New York's political environment especially, where you have a much bigger presence for the racial-equity Left making these types of arguments. It's something that they're going to have to navigate.

Brian Anderson: There is a new bill that is going to be voted on, on Thursday in the New York State legislature requiring people applying for concealed weapons permits to go through in-person training and also allow officials to access their mental-health records via a background check, at least according to what people are saying about this bill. And it's also going to prohibit the possession of guns in government buildings, courthouses, hospitals, and schools.

I wonder, Nicole, if you think this will basically address some of the concerns that you've suggested, and whether that's going to prove constitutional?

Nicole Gelinas: Yeah, I think it is certainly better to have stringent licensing requirements, education requirements. And other things that they can think about doing is making sure that there is a strong regulatory framework for gun dealers, gun sellers, making sure we're not adding guns to the straw-buyer market. And keeping things like—New York City, under its own regime under the state law, had rules that said, for example, you have to prove that you have a safe place to store your gun in your house, so it's more difficult to steal it. And they would come and visit your house and look at your lockbox. And that's something that I would hope would pass constitutional muster, that the city should be requiring these gun owners to demonstrate responsibility in securing the firearm. And also things like a succession plan for your gun. If you unfortunately pass away, what happens to your gun? That's something that New York City required. Is that something that will pass constitutional muster?

So certainly, the stronger the requirements are, the better. And we'll see how . . . This is certainly going to end up in court. Another thing that will end up in court again is, what is a sensitive place? We have the risk that we create a patchwork of sensitive places. And then you have people say, I forgot my gun when I was taking the subway. Well, okay. But under the logic of going after people carrying illegal weapons, that is at that time an illegal weapon, so they should also be prosecuted for carrying an illegal weapon. Again, very difficult to apply these prosecution issues in practice.

Brian Anderson: Ralph, I wonder if you could speak a bit about the decision itself, the constitutional reasoning in it. So writing in the SCOTUSblog, the constitutional scholar, Randy Barnett evaluated Justice Clarence Thomas's opinion as follows. He writes, "At the level of policy, it is quite modest. At the level of constitutional method, it is potentially major."

Setting aside the practical implications of the decision, which we've been talking about for a moment, what, in your view, as a matter of jurisprudence, set Thomas's interpretive method apart?

Rafael Mangual: So, well, one thing that I think is a really, really major development, is that the opinion rejects a means-end test for constitutionality. So there are many constitutional rights where, as a plaintiff arguing that some government action is unconstitutional, the burden falls on you to establish that the constitutional right, one, exists, and two, that it's been burdened in a way that triggers constitutional review. But in some cases, the government can then rebut that presumption by showing that the burden is justified, or that the burden exists in service to a compelling government interest, and that the regulation in question is narrowly tailored to that interest. That's what we call heightened scrutiny, strict scrutiny.

Some courts, for different contexts will adopt intermediate scrutiny, which is a slightly different formulation. Is there a legitimate government interest that's being served by this? And then, of course, there's rational-basis review. What this does, is it rejects any kinds of means and tests for constitutionality, and only asks whether the regulation . . . Once it's established that the Second Amendment right is burdened, the question then becomes whether the regulation has a historical analog that would allow the Court to conclude that the restriction in question is in line with what would've been understood to be incongruous with the existence of the right at the time of ratification.

And that makes some of these potential future cases a little trickier. For example, it's not at all clear that we have a significant body of historical records that we could use to justify an extremely high fee. And certainly there's other jurisprudence in other constitutional areas like poll taxes, where the Supreme Court has rejected potentially pricing people out of exercising a constitutional right. So I think that's certainly probably the biggest development in terms of the case law around the Second Amendment, was that there were a lot of courts that just thought, well, even if it's shown that a Second Amendment right is burdened, the government can still come in and justify that burden by surviving this means-end test. This opinion takes that completely off the table. And so I think that's going to be really interesting to see what role that plays in future litigation.

We have to look at these issues in the context of other areas of constitutional jurisprudence, right? So things like opening up your house to government inspections of your firearm storage place. It's not clear whether that would survive a challenge, even under the Fourth Amendment, right? There's a case called Patel that came down out of California a few years back, where the Supreme Court ruled in favor of a facial challenge to a Los Angeles regulation requiring hotels to keep a log of guests, and then making that log available to police on demand. It's not entirely clear that something requiring you to allow government agents into your home to examine your gun storage set-up as a condition of being able to exercise a constitutional right would pass jurisprudence. So that, I think, is what Randy Barnett was really focusing on.

What's interesting, though, is that there did seem to be in the concurrence of Amy Coney Barrett, some slight discomfort with such heavy reliance on historical analogs. I think in part because it’s certainly possible that there might have existed a regulation or regulatory trend that was just incongruous with what the text meant at the time of adoption. And so it perhaps makes sense to allow for that. What the Court also did, though, was it left a couple of really interesting questions unanswered. For example, I mentioned earlier the case of McDonald, which held that the Second Amendment was not just enforceable against the federal government, but also against the states. That raises a really interesting question, which is whether the historical analysis should concentrate on the period of the Second Amendment's ratification, or on the period of the 14th Amendment's ratification?

Some scholars have argued that when you're talking about a state infringement on a constitutional right, that what really matters is how the right was understood at the time of the 14th Amendment's ratification. And so the Court said that it didn't need to settle that question in this case. But it's going to be really interesting to see what happens with that, given that they recognize the existence of that scholarly debate and left the door open to answering it in both directions.

Brian Anderson: Sure. A final question, maybe for all three of you. What effect do you think this decision will have on the policing approach in New York City? One of the ways guns were controlled in the city during the Giuliani and Bloomberg years was through stop, question, and frisk, which the department has backed away from as an approach. Do we see perhaps a reinvigoration of that idea, or some other approach that might get more guns off the street?

Rafael Mangual: I mean, I don't think it's going to have a huge impact on policing in the city. And I say that because it doesn't seem to have had a huge impact on policing in the other jurisdictions that have either adopted shall-issue regimes or have adopted permitless carry regimes. Part of the reason for that is that gun arrests tend to be second-order offenses. The potential for someone carrying a gun is very rarely the sole basis for the interaction, right? For example, in New York City, 40-plus percent of gun arrests in 2020 started as traffic enforcement action.

So you're getting pulled over for some kind of traffic violation. That's the basis for the interaction. And then, let's say the driver turns out not to have a license. So you pull them out of the car, you pat them down, and then you discover the illegal weapon. Or it turns out they have drugs in the car, and you make an arrest. And then the search during the arrest reveals the presence of an illegal firearm. And so that's, I think, a much more common way for illegal firearm carriage to be discovered. And so I think we'll continue to see that.

But I do think that the bigger question here is going to be whether, and to what degree, those critical—particularly on the left—those critical of the Bruen decision and what it means for New York, will come to terms with the reality that they have played a role in our gun violence problem that is, in my opinion, far greater, insofar as they have supported not just defunding police, but also not investing in police enough to, for example, make up for the fact that we're losing detectives at an enormous rate, and other officers at an enormous rate. And to make up for the fact that they have passed and enacted criminal justice reforms that have really lowered the transactional cost of crime commission, and also raised the transactional cost of crime enforcement. Things like bail reform, discovery reform, Raise the Age, Less is More.

To me, you can have a far greater impact on gun violence outcomes by getting away from the de-policing and de-carceration approach that a lot of modern Democrats and cities like New York have taken. And so one question, as I've written for City Journal, that I think really tests the seriousness of people on this issue, is the degree to which they're going to be willing to question their priors in the criminal-justice reform space, particularly in light of what this decision means. Because the reality is that crime—gun crime in particular—is very hyper-concentrated in very small places and among very small social networks of people. And it's a lot easier to control criminals than it is to control millions and millions of firearms in circulation. So that, I think is going to be the major question for New York moving forward.

Brian Anderson: Robert or Nicole, any observations on that?

Nicole Gelinas: Yeah. I think to the extent that stop, question, and frisk and other aspects of Broken Windows policing and stopping small crimes before they turn into larger crimes, was a deterrent to carrying an illegal gun on the street, as both Bill Bratton and Ray Kelly reiterated over the weekend. If you are concerned you'll be stopped and questioned, leave your gun at home. A dispute on the street corner doesn't escalate to the level of becoming a shootout. We got illegal guns off the streets. More importantly, we made people feel comfortable going out not carrying their illegal gunb because there was a virtuous-cycle effect where, as shootings decreased, people felt safer and did not feel that they had to carry their illegal gun for self-defense, as many young black men have said over the past couple years.

That has turned around. They say that they are carrying these guns for self-defense. I think to the extent that more guns in circulation means there's even less friction in getting an illegal gun, yes, we'll have to go back to doing more stop, question, and frisks to try to change that incentive, again, that you don't want to be carrying because there is a penalty for carrying. And going back to the days where that penalty was immediate and certain. So if you know you're carrying your illegal gun, you've got a two to four year prison sentence, you're going to think twice about that. So yes, we're going to have to go back to doing that. And more stops for suspicious behavior, including carrying an illegal gun, and a certain prison sentence for doing that.

And that's a sound policy, but very difficult to do in this political environment. And we've seen some shooting cases dropped because both sides in the shooting have claimed self-defense, even though they were each carrying illegal weapons. So it will be interesting to see how far the self-defense claim holds when the person was not supposed to be carrying a weapon. So, lots of unknowns here makes Eric Adams's job much more difficult and complicated, to go back to your original question, Brian.

Robert VerBruggen: I just wanted to add a couple things. But first of all, I mean, I think it's important going forward to draw the line between legal and illegal guns, especially if we're worried about the fact of more legal guns undermining enforcement. I think it's going to be very important to keep that distinction in mind and use that distinction aggressively. Another aspect of this situation, though, is when you have more people legally carrying guns, there's going to be more interactions between people legally carrying and law enforcement.

And I think that involves training on both sides. I mean, I'm willing to bet that New York is going to require very extensive training. So part of that should definitely be how they interact with law enforcement. Inform them that you're carrying, keep your hands visible, et cetera. And also, I think the police are going to need to get more used to interacting with armed civilians who are legally carrying and are not breaking any laws.

Rafael Mangual: Well, I just wanted to add one thing to Nicole's point, because I think she's exactly right about the need to have certain and stiff penalties in response to violations of our gun laws, even after this decision. But what's not clear to me is that there exists an infrastructure and a group of leaders who is willing to go down that route. And we have a very recent example of something just like this. A case involving an individual named Sharif Lucas, who a year ago, according to the Daily News, was arrested and charged with illegally carrying a firearm in federal court here in New York, and was given a sentence of probation. And a couple of weeks ago, a video made the rounds and went viral, allegedly showing him walking out of his house and discharging a firearm down both sides of his street, on camera, in broad daylight.

So I just use this example to reiterate that far more important to the future of New York under this new regime is going to be the willingness of our criminal justice actors, our judges, our prosecutors, our lawmakers, to create the conditions in which individuals who have proven themselves to be dangerous and risky, to actually have the wherewithal to take them off the street for significant periods of time.

Brian Anderson: Well, thanks to all three of you. Don't forget to check out Nicole Gelinas, Ralph Mangual, and Robert VerBruggen's work on the City Journal website. We'll link to their author pages in the description. I should note that Ralph has a very, very exciting new book coming out in July, called Criminal (In)Justice. We'll have a link to that as well. And we'll have him back on the podcast when the book is out to talk about that in more detail.

You can also find City Journal on Twitter, @CityJournal, and on Instagram, @cityjournal_mi. And as always, if you like what you've heard on the podcast today, please give us a nice rating on iTunes. So to the three of you, thanks very much, and really appreciate having you on.

Nicole Gelinas: Thank you, Brian.

Rafael Mangual: Thanks.

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