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Justice Alito Asks Why Law-Abiding Citizens Can’t Be Armed on NYC Subways as SCOTUS Hears Major Second Amendment Case


Hearing oral arguments in a major Second Amendment case on Wednesday, Supreme Court justices considered whether to dramatically loosen gun control restrictions across the county, spiraling into a debate over whether New Yorkers should be able to carry firearms on the subway.

From the high court’s right flank, Justice Samuel Alito answered that question in the affirmative.

“All these people with illegal guns: They’re on the subway, walking around the streets, but ordinary, hard-working, law-abiding people, no,” Alito told the Empire State’s solicitor general Barbara Underwood. “They can’t be armed.”

The case is New York State Rifle & Pistol Association v. Bruen, and it is a lawsuit brought by a pro-gun ownership group on behalf of two men denied a concealed carry license by New York State. The Empire State has a 108-year-old handgun-licensing law that allows authorities to deny a gun license to an applicant to anyone deemed to be not “of good moral character” who “lacks a history of crime or mental illness,” or in any other situation in which “good cause exists for the denial of the license.” That rather ambiguous standard, known as “proper cause,” is the same or similar to the standard many other states use in their gun licensing laws.

The groups challenging New York’s law argue that the Second Amendment guarantees both the right to “keep” firearms at home and the right to “bear” (or carry) arms outside the home. Petitioners argue that the question of Constitutional protection of gun rights outside the home is “the single most important unresolved Second Amendment question after this Court’s landmark decisions in District of Columbia v. Heller and McDonald v. City of Chicago.”

“Different Historians Say Different Things”

This is the second lawsuit that reached the Supreme Court over New York’s gun law, the first having been brought by the same petitioners. The earlier case was deemed moot by SCOTUS after oral arguments, because New York State changed the portion of the law that was at the center of the legal challenge.

A few themes emerged during Wednesday’s oral arguments.

At several points, there was debate over the proper role of history in an analysis of the Second Amendment’s scope. Justice Clarence Thomas started the questioning by asking petitioners’ attorney Paul Clement,”If we are to analyze this based upon the history or tradition, should we look at the founding, or should we look at the time of the adoption of the 14th Amendment?”

Then came the questions from the court’s left flank.

Justice Elena Kagan jumped in to ask whether case law that developed in the 1920s might be more appropriate to apply.

“Different historians say different things,” remarked Justice Stephen Breyer, calling the lawsuit “a wonderful case for showing both sides.”

Justice Sonia Sotomayor came prepared with historical references to gun laws, including a 1350 British ban on concealed firearms. “In Colonial America,” she continued, “at least 4 if not 5 states restricted concealed arms.”

Sotomayor also reminded Clement and her fellow justices that looking to history isn’t always the best practice, pointing out that Civil War-era gun regulations were applied to specifically to deny Black people the right to bear arms.

The justices’ discussion of history subsided, however, giving way to a spirited argument over New York’s licensing system, which requires individuals to prove they have an “atypical” need to carry a concealed weapon.

Chief Justice John Roberts asked Clement whether certain places—such as college campuses and sports stadiums—might be considered “off limits” for purpose of concealed carry. Clement suggested that the Court might look to First Amendment jurisprudence for guidance, analogizing the distinction between public and non-public fora for speech regulations to “sensitive places” for gun restrictions.

“A Lot of People End Up Dead”

Justice Kagan asked how Clement’s suggestions would “cash out in the real world” in places like New York City subways or NYU’s campus, which is “open for anybody to walk around.”

Clement responded, “Well, NYU doesn’t have much of a campus” — an answer that was met with guffaws from the bench.

“I would go back to New York, and I think you’ll find that that’s wrong,” responded Kagan rather defensively, who also mentioned that Columbia University is also in New York.

“Columbia’s got a campus,” allowed Clement jovially, before mentioning that crowded places like Yankee Stadium “might” be a place in which guns could be legally restricted.

Justice Amy Coney Barrett served up a Big Apple reference of her own, asking whether guns could be outlawed in Times Square on New Year’s Eve.

Justice Breyer appeared to have limited patience for either Clement’s take on NYU or on making guns readily available in the city. “To my mind, I think NYU does have a campus,” Breyer said bitingly. “You’re not certain,” he responded further to Clement. “You think that in New York City, people should have considerable freedom to carry concealed weapons.” Breyer continued, “I think that people of good moral character who start drinking a lot and who may be there for a football game or some kind of soccer game can get pretty angry at each other and if they each have a concealed weapon, who knows?”

“There are plenty of stats that there are some people who do know and a lot of people end up dead,” Breyer continued, “So what are we supposed to do? Just sort of float around like NYU and say this is the rule?”

Clement responded to Breyer’s line of questioning, arguing that other cities — such as Phoenix, Houston, or Chicago — have looser gun restrictions, but do not have “demonstrably worse problems” than New York does with gun violence.

Native New Yorker Kagan was pretty dismissive of that argument. “Most people think Chicago is the world’s worst city with respect to gun violence,” she remarked. “Chicago doesn’t think that, but everyone else thinks that about Chicago,” she said, shutting down Clement’s comparison.

“It’s one thing to talk about NYU’s campus, and another to talk about upstate New York,” Justice Thomas said when N.Y. Solicitor General Underwood began her argument in support of New York’s law and the discretion it gives licensing officers to take local factors into account. Thomas’ point was that one of the two individuals denied a gun license in the case was a resident of the more rural Rensselaer County — as opposed to New York City.

“How Many Muggings Take Place in the Forest?”

Picking up on the upstate v. downstate debate, Chief Justice Roberts raised the issue of the need for self-defense in a less populated area. Because the Heller case relied on the right to self-defense as a basis for its reading of the Second Amendment, said Roberts, the different risks posed by urban versus rural areas are relevant.

“How many muggings take place in the forest?” the Chief Justice asked.

The question, however, may not have been quite as rhetorical as Roberts had hoped. Underwood responded, “I don’t know, but I’ll tell you that our licensing officer told us that rapes and robberies happen on the deserted bike paths,” and continued to point out that while the risk of crime might differ based on population density, so too does the availability of law enforcement to intervene.

Justice Alito, a New Jersey native, used the moment to present a vehement case on behalf of law-abiding working New Yorkers who might work late and might need to carry firearms on public transportation during late-night commutes. Although such individuals likely would not qualify under the New York law as having an “atypical need” for self defense, their safety is nonetheless at risk.

Underwood explained that the risk created by armed individuals in crowded public transport vehicles is just what New York seeks to avoid with its gun laws. The argument did not go over well with Alito.

“There are a lot of people armed late at night on the streets of New York and on the subways late at night right now, aren’t there?” Alito pressed.

“I don’t know that there are a lot of armed people there right now, ” answered Underwood.

“No?” interrupted Alito with seeming disbelief, before continuing, “how many illegal guns were seized by the New York Police Department last year?”

“It’s a substantial number,” Underwood replied without providing an exact number.

Alito also criticized Underwood for being “overly enthusiastic” in the brief submitted to the Court, which contained a historical citation abbreviated to leave out a word. In the shortened quote which Alito called “troubling,” the brief quoted from an 1814 North Carolina legal manual. It dictated that local officials should arrest anyone who “shall ride or go armed offensively.” The word “offensively” was left out of Underwood’s brief, and Alito remarked, “I could see how it would slip through,” but qualified, “I’m not accusing you of anything.”

When Deputy Solicitor General Brian Fletcher picked up the argument on behalf of the Department of Justice as an amicus of New York, Justice Kagan shifted the discussion back to the practical safety impact of New York’s law. Kagan, a former prosecutor, asked whether there were studies or other evidence as to how laws like New York’s affect encounters between individual citizens and police officers.

“Having more guns on the street does complicate and increase the danger inherent in citizen-law enforcement encounters,” replied Fletcher, adding, “It’s a real concern.” Adding some off-the-cuff commentary, Fletcher continued, “I can give you my own sense that if I were a police officer, I would about the the odds of whether the person I was approaching is likely to be armed,” adding that the state’s particular licensing regime would be “an important factor” to such a calculus.

New York Attorney General Letitia James (D) issued a statement Wednesday about the case touting the strength of the Empire State’s gun laws:

“While communities across the nation continue to suffer senseless gun violence, the burden of protecting Americans from mass shootings falls on states. New York has some of the strongest gun laws in the nation, but guns do not stop working as they cross the threshold of another state’s border, which is why our gun licensing laws are necessary. This year alone, the United States has already seen over 600 mass shootings and more than 37,000 individuals have died as a result of gun violence. We are now in the Supreme Court, defending our right to prevent New York from becoming the next community devastated by gun violence. Hundreds of years of history support New York’s efforts to limit gun violence and protect public spaces. This is about protecting New Yorkers’ lives.”

James announced last week that she is running for governor.


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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos