Supreme Court To Decide Whether Americans Can Carry Guns in Public

An open carry supporter at a Texas protest / AP
April 26, 2021

The Supreme Court said on Monday that it will hear a major gun rights case later this year asking whether Americans have a constitutional right to carry firearms outside the home.

The justices will hear a challenge to a New York law that requires anyone seeking a license to carry a gun in public prove they have a good reason to do so. The National Rifle Association and 23 states back the challenge.

Monday’s case could definitively settle unresolved questions over the right to carry beyond the home. A victory for the gun-rights plaintiffs could cast doubt on state laws across the country that place strict conditions on carrying firearms in public. Lawyers for the pro-gun challengers stressed as much in their appeal to the High Court.

"Perhaps the single most important unresolved Second Amendment question ... is whether the Second Amendment secures the individual right to bear arms for self-defense where confrontations often occur: outside the home," the petition reads.

The plaintiffs in Monday’s case, Robert Nash and Brendan Koch, are New York residents who were denied concealed carry permits. The state requires applicants show they have "proper cause" for a concealed carry permit. New York state courts have said "proper cause" means the applicant must "demonstrate a special need for self protection distinguishable from that of the general community."

At least eight states have similar laws. Hawaii’s limits on carrying in public, which are much like New York’s, survived a challenge in March before the Ninth U.S. Circuit Court of Appeals. Hawaii’s licensing regime requires applicants to show they have "reason to fear injury" and makes clear a permit will be granted only in "the exceptional case."

Judge Jay Bybee wrote that Hawaii’s law was consistent with the history of firearms regulation in England and in the Founding Era. Several other federal appeals courts have turned back challenges to strict permitting regimes on similar grounds. The plaintiffs in Monday’s case said that was a reason for the justices to get involved.

"Millions of law-abiding Americans are suffering a shifting patchwork of denials of a constitutional right that most states, jurists, and this Court recognize as fundamental," the petition reads.

The Supreme Court first acknowledged the right to keep firearms for self-defense in the 2008 District of Columbia v. Heller decision. In the years since, the justices have mostly avoided the Second Amendment, other than to clarify in 2010 that Heller applied to state governments too.

The justices turned down a range of appeals in the ensuing years. They refused to review challenges to the Trump administration’s ban on bump stocks, state laws banning so-called assault weapons, and limits on handgun sales over state lines.

The Court reentered the gun rights area in 2020 when it heard a challenge to New York City’s gun transportation regulations. But the Court punted for technical reasons and broke no new ground for gun rights.

The Court’s reticence toward the Second Amendment has confused legal observers. In some instances, the justices seemed to ignore their usual criteria for hearing or rejecting appeals. In a 2017 case, a deeply divided federal appeals court said a law barring ex-felons from owning guns was unconstitutional in certain circumstances. The Supreme Court almost always intervenes if a lower court concludes a law is unconstitutional, but the justices turned down the Obama administration’s request to take up the case.

Justice Amy Coney Barrett touched on the issue at the center of that case as a lower court judge. In a 2019 dissent, she said a man convicted of mail fraud ought to have his Second Amendment rights restored because the Constitution does not place a "virtue requirement" on the right to own guns.

The conservative justices have sounded notes of discontent over the years. Justice Clarence Thomas in particular has criticized the Court for treating the Second Amendment as a "disfavored right."

"For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous," Thomas wrote in a 2017 dissent. "But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense."

The justices will hear the case, No. 20-843 New York Rifle and Pistol Association v. Corlett, in the fall or early winter.

This piece was updated to include additional context.