WASHINGTON — The Supreme Court said Monday it will consider how much protection the Second Amendment provides for carrying a gun outside the home.
The case will mark the first time in more than a decade that the court agreed to take up a central issue of the gun rights debate, something it has consistently ducked since issuing a landmark ruling in District of Columbia v. Heller in 2008 that the Second Amendment provides an individual right to keep a handgun at home for self-defense.
The court agreed to hear a challenge to a New York state law that allows residents to carry a concealed handgun only if they can demonstrate a special need beyond a general desire for self-protection. The law “makes it virtually impossible for the ordinary law-abiding citizen” to get the necessary license, Paul Clement, a lawyer representing the challengers, said.
One of them, Robert Nash, said he was wanted to carry a gun in response to a string of robberies in his neighborhood. Another, Brendan Koch, also cited a desire to carry a gun for protection. Both men said they had completed gun safety courses, but both were turned down when they applied for permits. They joined a lawsuit challenging the law brought by the New York State Rifle and Pistol Association.
New York bans carrying a handgun openly. The state law says anyone seeking a license to carry a concealed weapon must demonstrate “a special need for self protection distinguishable from that of the general community or of persons engaged in the same profession.”
The law is so restrictive, Clement said, that it cannot be reconciled with the Supreme Court’s “affirmation of the individual right to possess and carry weapons in case of confrontation.”
Federal courts have split on the meaning of the Second Amendment’s declaration of a right to keep “and bear” arms. New York Attorney General Letitia James urged the Supreme Court not to take up this case. She said when the U.S. Court of Appeals for the Second Circuit upheld the state’s concealed carry law, it assumed a right to carry firearms outside the home.
But the right is not unlimited and can be subject to state regulation, she said. New York’s law was a response to an increase in homicides and suicides committed with concealed firearms early in the 20th century, she told the Supreme Court in a written brief.
In late March, the U.S. Court of Appeals for the Ninth Circuit upheld a Hawaii law similar to that of New York. The appeals court had ruled earlier that individuals do not have a Second Amendment right to carry concealed weapons in public. Its latest decision concluded that there is no general right to openly carry weapons in public for self-defense, either.
Justice Clarence Thomas has repeatedly criticized his colleagues for turning down similar cases in the past.
“The right to keep and bear arms is apparently this Court’s constitutional orphan,” Thomas wrote in one dissent.
Last year, the court dismissed a challenge to another New York law that said residents with a permit to keep a gun at home could not take the weapon beyond city limits for use at a second home or a shooting range. The case was tossed out after the city repealed the law.
Justices Thomas, Samuel Alito and Neil Gorsuch said the court should have decided that case and declared the restriction unconstitutional. Another of the court’s conservatives, Justice Brett Kavanaugh, said then that the court should address the larger Second Amendment issue by taking up other challenges to gun restrictions, such as on carrying guns outside the home.
The court’s conservatives may have been reluctant to take up the gun rights issue in the past, because they couldn’t be certain they could find a fifth vote in their favor. But the addition of Justice Amy Coney Barrett, providing a solid 6-3 majority, likely gave them confidence to take this latest case.
It will be argued early in the fall, during the court’s next term.