Supreme Court on Gun Rights

The Supreme Court just heard arguments in a gun rights case – that could change everything, reaffirming the fundamental “right to carry.”  What chances? What possible effects?

The case, New York Rifle & Pistol Association v. Bruen, raises a cornerstone question:  How can a state restrict the constitutional right to carry? Must a citizen “show cause” to carry a firearm?

Questions were blistering. Justices Alito, Kavanaugh, and Roberts pressing New York and Biden Administration to defend restrictions on personal gun carrying. Self-defense loom large.

To some, this may all seem unimportant, but the case is very important for multiple reasons.

For backdrop, 31 states permit “open” carrying without a permit. Five and DC block open carrying – including New York.  Six have restrictions, 15 require a permit for “open” carry.

Separately, 20 states permit “concealed” carrying with no permit. These are “constitutional carry” or “unrestricted” states. That group falls within a larger group when permits “shall” be issued is asked, zero or minimal restriction. See, e.g., Concealed carry in the United States.

A final group, of which New York is one, is called “may issue” states.  There are nine. Here, the state can make getting a concealed carry permit very hard, nearly impossible. New York is viewed as so restrictive it is “no issue” – and there is the rub. New York, California, Massachusetts, New Jersey, and Hawaii are so difficult; the right seems suffocated.

So, given this constitutional challenge to restrictions in New York, what chances the High Court widens the scope of carrying rights?  Scholars argue, but at least four justices had to say “yes” to hear the case.  Questions of both New York and Biden’s team were tough. These states are objective outliers, and crime is way up due to Democrat-led “defund police” campaigns.

Homicides are at records in dozens of cities, while police recruiting, retention, and response times are down, driven lower by Biden mandates forcing vaccines on reluctant officers.

In parallel, gun and ammunition sales are way up – many first-time buyers, women, and minorities – as citizens seek protection. All this argues for self-defense and the defense of others.

A ruling this year could be narrow, pushing New York to stop tight restrictions on concealed carry – or could be broad and force an end to “no issue” and “may carry” laws.  That might cause all states to permit all citizens the basic right to concealed carry, if not to open carry.

Of course, the High Court could favor New York, encouraging states to become more restrictive, but that seems unlikely – the ruling and response.

A few added facts may inform the Court, suggesting the effects of a ruling against New York.  Generally, municipalities are safer when citizens prioritize self-defense and where gun ownership is higher.

Right to “carry” laws appear to lower crime, with gun homicides 10 percent lower in concealed carry states – likely due to elevated deterrence. Some states are considerably lower.

For example, after Florida allowed concealed carry, the homicide rate went from 36 percent above the national average to four percent below.  In Texas, murder rates dropped 50 percent faster than the national average; rapes dropped 93 percent faster in the first year, 500 percent faster the second year.

Conversely, crime is higher in states that restrict carrying guns than in those without restrictions.  How much higher? In aggregate, states without concealed carry have a robbery rate 105 percent higher; murder 86 percent higher, assault 82 percent higher, violent crime 81 percent higher, auto theft 60 percent higher, and rape 25 percent higher. See, e.g., Concealed Carry.

Point? When criminals worry about citizen firearms, they are deterred, either not committing the crime or doing so in another state. Deaths from mass shootings are also lower in carrying states.

Historic data broadly supports this hypothesis, as lower violent crime rates correlate historically with wider gun ownership.

Stepping back 20 paces, what does this add up to? Several encouraging observations.

First, with a 5-4 majority of judicial conservatives on the High Court, textualists who respect the Constitution’s original intent, plain meaning, or historical interpretation – four voting to hear the case– the presumption is that a big ruling could be in store.

Second, the state in question – New York – and the Biden legal position are “outliers,” only a small number of states restricting Second Amendment rights as New York does.

Third, the threat environment, rising violent crime, and citizen justification for self-defense could play into the evaluation of urgency in upholding this right.  New York is less safe than years ago.

Fourth, the fact that police are undermanned, down-funded, facing challenges in recruitment, training, retirement, and response – not to mention facing intense scrutiny, could mean that citizen rights to “keep and bear arms,” including to carry them, become more important.

Net-net, the High Court is under scrutiny itself, some in the Biden Administration and Congress aiming to disarm it with political packing, but this year could see major rulings – on abortion and property rights, religion to Second Amendment. This case might be big. Like on a dark New York City street, anything could come around that corner.