The Supreme Court and New York's Gun Laws

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Brian Lehrer: Brian Lehrer on WNYC. Right now, New York City has one of the most restrictive gun laws in the country, you can't carry a gun outside the home, unless you prove that you're at higher than normal risk for violence and actually need one for protection. Well, this week the Supreme Court heard arguments that that aspect of New York's gun law violates the Second Amendment by treating the right to bear arms as a privilege and not a constitutional right. The decision in the case is not expected for months, but with a conservative majority on the bench, it's expected that the court will rule to make it much easier to carry a gun in public within city limits.

We'll hear a couple of exchanges between one of the justices and one of the lawyers in the case in a minute. With me now to talk this over is Adam Winkler, UCLA professor of law and author of books We the Corporation, and relevant to this, Gunfight: The Battle Over the Right to Bear Arms in America. Professor Winkler, welcome back to WNYC.

Adam Winkler: Thanks so much for having me on, Brian.

Brian Lehrer: Can you talk more about New York's proper cause law as it's known and put it in context of the rest of the states in the country?

Adam Winkler: Sure. New York allows people to carry a concealed weapon but only if they get a permit. It's very difficult to get a permit. In New York, it's required that you show that you have some individualized particular reason to carry a firearm. As you said in the introduction, maybe if you're being stalked or you live in a very dangerous neighborhood and have to be out at night for work. Very rare are these concealed carry permits in New York. This contrasts with most of the states in the union.

About 43 states in the union have much easier laws when it comes to concealed carry, allowing virtually any person who's law-abiding to get a permit, and in a number of states, no permit requirement whatsoever. States like New York and California and Massachusetts are finding that their laws are really subject to question in this current Supreme Court case.

Brian Lehrer: As I understand it, New York City versus New York State is at issue here because further upstate, you could justify having proper cause for a gun for hunting, or target practice. In the city, those justifications don't really work, right?

Adam Winkler: That's right. We find that in rural areas, the discretion that these laws give to law enforcement over who's going to get a permit is generally used more liberally than the discretion in cities where it's much harder to get a permit.

Brian Lehrer: Listeners, we can take a few phone calls for UCLA Professor of Law and author of Gunfight: The Battle Over the Right to Bear Arms in America, Adam Winkler. Do you want to be able to carry a gun in public in New York City and you can't do it right now? 212-433-WNYC, 212-433-9692. Do you fear more people being able to carry guns in public in New York City? 212-433-9692. Or do you have a legal question about this case? 212-433-WNYC. Let me play two short clips of an exchange between Justice Samuel Alito and New York Solicitor General, Barbara Underwood.

Alito was talking about people who work late at night in Manhattan, people who clean offices, or a nurse or a dishwasher. When they commute home, he says they're scared for their safety and apply for a gun license. Listen.

Justice Samuel Alito: All these people with illegal guns, they're on the subway and walking around the streets, but the ordinary hard-working law-abiding people I mentioned no, they can't be armed.

Barbara Underwood: The idea of proliferating arms on the subway is precisely I think what terrifies a great many people.

Brian Lehrer: That was part of the exchange. Here's another little part.

Justice Samuel Alito: They do not get licenses. Is that right?

Barbara Underwood: That is in general, right, yes. If there's nothing particular to them. That's right.

Justice Samuel Alito: How is that consistent with the core right to self-defense, which is protected by the Second Amendment.

Brian Lehrer: That exchange, Professor Winkler really gets to the heart of how different people see guns, I think. Underwood associates them with violence in that exchange, while Alito sees their primary purpose as protection. Is the law for protecting people against gun violence, especially in the context of rising gun violence within cities, or for allowing individuals to arm and protect themselves with guns? Did New York's recent history of rising gun violence come up?

Adam Winkler: Well, the issue of rising gun violence didn't come up directly, but you can see it in the undertones of Justice Alito's questions. He's concerned that ordinary people don't have the means to defend themselves. His mention of the subway, I couldn't help but think of the notorious incident of Bernie Goetz back in the 1980s when he used a firearm to kill and to shoot several young men, African American men, in the subway when he felt that he was attacked. I do think that the difference between Alito and Underwood captures an essential difference in how we view guns in America.

About half of us view guns as a tool of self-defense, and half of us view them as a tool of mayhem that brings more crime in a neighborhood. In Alito's view, having more guns on the subway makes them safer. In Underwood's view, having more guns on the subway makes them more dangerous.

Brian Lehrer: Do I understand, however, that the subway, in particular, could still an act to policy to ban guns, because it's a closed space and that would be different than on the street, even if the Supreme Court rules on the gun right side?

Adam Winkler: Even if the Court strikes down as many people expect them to do, New York's restrictive concealed carry law and New York has to allow more people to carry guns concealed on city streets. The justices did suggest that one answer for New York would be to regulate what they call sensitive places. Under the Second Amendment, you don't have a right to take a gun into sensitive places. The court hasn't provided much definition of what counts as a sensitive place. Obvious examples would be government buildings or schools.

What about the subway? What about Yankee Stadium? What about Times Square? All of these issues came up in the oral argument. You could imagine a situation where New York has to allow more people to carry guns but very severely restrict or broadly defines what counts as a sensitive place to include things like the subway in Times Square, which would make it much more difficult for someone who wanted to carry a gun in New York City streets to do so.

Brian Lehrer: How broadly that sensitive place exemption exists once the Supreme Court ruling comes down will be up to these justices?

Adam Winkler: Absolutely. I think that what we saw in the oral argument the other day was just the first skirmish and what I expect to be a multi-year battle over concealed carry rights in a place like New York City. I think the court is going to say that you have a right to carry guns in public, but I don't expect New York lawmakers to simply throw up their hands and say, "Okay, everyone gets to have a gun and can carry a gun in New York City." I think they're going to continue to try to protect public safety by restricting guns in as many places as possible.

Brian Lehrer: We have a lot of people calling in on this. Let's see what some of them have to say. Steven in Manhattan, you're on WNYC. Hello, Steven.

Steven: Thank you for taking my call, Brian. Vaccination nurse, giving vaccinations near the George Washington Bridge today. I'm a longtime New Yorker. My fear is that if so many people are going to be carrying these deadly weapons, am I going to feel the impetus that I have to to protect myself too from all these other people that are armed? If everybody's armed, what are you going to do? It's very frightening to me that it could come to this. I know a lot of New Yorkers are too.

Brian Lehrer: They might argue that it's already the "bad guys" who are carrying because it's easy enough to get an illegal weapon. Maybe you should feel safer if the Supreme Court ruling comes down in their favor. What would you say to that?

Steven: People can't shoot straight. [chuckles] It's just it's so frightening to me. Yes, it could come down to that. I have a lot of people came out on the island stuff. They're all for it. They think everybody should be on. I'm like, "No, disagree." It's just frightening to me.

Brian Lehrer: Steven, thank you very much.

Steven: Thank you for--

Brian Lehrer: His people don't shoot straight argument, I wonder if that came up in court in a serious way. Any statistics? Were they having arguments on statistics about whether places that lacks open carry laws or carrying public laws wind up having more accidental shootings and actually more gunshot wounds and gunshot deaths than places like New York that are more restrictive?

Adam Winkler: This is a subject of incredibly rich and nuanced debate in the social science and criminology literature which is we've had all these states that have loosened their concealed carry policies over the last 30, 40 years what's the impact of that loosening on violent crime? Some of the most famous work in this area was done by a man named John Lott who argued that more guns equals less crime. His study showed that there was actually reductions in violent crime with more people carrying concealed weapons.

However, there have been distributing studies and I think the best most recent work is by John Donohue at Stanford and he shown that actually that if you loosen these restrictions it does lead to an increase in violent crime. It does lead to more aggravated assaults and people using guns to commit crimes. This is part of a big debate and I do believe that the challengers to New York's law in the oral argument said multiple times that there is no public policy impact from loosening concealed carry restrictions. I think that's very much in debate,

Brian Lehrer: Liz in Inwood you're on WNYC, hi Liz.

Liz: Hi Brian, thank you so much for taking my call. I am probably atypical among New Yorkers and that I like to shoot and I have some experience with guns. My father is a gun collector, he owns a lot of guns, he's getting old. I would like to be able to inherit them legally and to be able to dispose of them properly without having to have some court appointed person. I also would like to be able to target shoot and in order to do that I would have to have a permit, but I think that should be a rigorous and difficult process.

I think there should be lots of restrictions, I can't imagine how New Yorkers are safer with lots of people who don't know what they're doing with guns having guns, but the part that really perplexes me about the clip that you played is Alito saying that the constitution gives us the right to have guns for protection. The constitution gives us the right to have guns for the purposes of a militia so I don't understand and perhaps your guest can explain how the militia part got lost in being attached to why we have the right to bear arms.

Brian Lehrer: Liz, thank you very much and that bird flew about 10 years ago at the Supreme Court, right?

Adam Winkler: That's right. Liz asks an important question when you read the text of the Second Amendment it does refer right there to a well-regulated militia being necessary to the security of a free state. The Supreme Court in the Heller case in 2008 said that language was not a limitation on the right to keep and bear arms but an explanation of part of the primary motivations for including it in the constitution. The court said then it wasn't the only motivation and that the right to have a firearm for self-defense was also part of the original understanding of the Second Amendment.

Obviously, that's a very controversial claim and actually one for which there is better evidence against than there was during the Heller time. We now have these corpus linguistics databases, large databases of English language text from the founding era. When you search bare arms in these databases, it turns out that bear arms is used in over 90% of the cases in a military context. It doesn't seem that that data at least supports Justice Scalia's view in the Heller case that the militia was not a limitation on the right to bear arms but an explanation for one of the primary motives only.

Brian Lehrer: Raymond in the Bronx, you're on WNYC. Hi, Raymond

Raymond: How are you doing Brian and hello to your guest. I'm from the Bronx and I was against gun violence [uninteligible 00:14:07] holding guns because my uncle was killed by a gun in the '80s when I was a little kid, but now that I have-- [crosstalk]

Brian Lehrer: Oh my. Raymond, I want people to hear you really well. It sounds like maybe you're on a speakerphone can you pick up a handset.

Raymond: [unintelligible 00:14:22] .

Brian Lehrer: For people who couldn't hear Raymond said his-- go ahead. Your uncle was killed by gun violence in the 1980s, go ahead.

Raymond: My uncle was killed walking home from work in the Bronx in the '80s so I was really against guns and now that I have a family of my own and the increase of what's happening with guns in the streets of just illegal guns just everywhere or it seems so, I was like let me look on what's the proper way to obtain a license and it's very hard in New York City to do so. Like your first caller having guns everywhere and just having a willy nilly like Texas and Tennessee as far as their loose gun laws I wouldn't want that.

I think that if it's attached to you have to get training, there's background checks and such like that, psychological and whatsoever, but make the pathway for confident people through those testing to obtain a gun. With a tie to training, I think it's not a bad thing but I don't believe they should be available on the subway either. The sensitive areas that's a key part of the legislation that should be in there as well.

Brian Lehrer: How would you envision potentially using a gun in self-defense in the Bronx where you live?

Raymond: I have family in law enforcement and I read up on anything before I make a decision so that is a last resort. The first thing and I share this same to your listeners, I'm a Black male over 40 so I've lived in the city for quite some time. The first thing should be deescalation, it should be a last resort and that's how I would see it and that's how I would count it. They will say, "Well, then why have it if you're not going to use it," but the fact that I cannot obtain one I feel that that's the problem. I hope I answered the question, Brian.

Brian Lehrer: Yes you did. Raymond thank you very much please call us again. Professor Winkler relevant to Raymond's call at the Supreme Court in addition to Justice Alito expressing empathy with essential workers unable to carry guns when they're coming home late at night. He also brought up a controversial brief filed by Black Public Defenders who claim New York's concealed carry restrictions are motivated by racism.

He said, this is a quote from Justice Alito, "There are those that believe a major reason for the law was the belief that certain disfavored groups, members of labor unions, Blacks and Italians were carrying guns and they were dangerous people and they wanted them disarmed." Do you think that argument from the bench will hold any water in this case or is historically accurate?

Adam Winkler: First I guess we should compliment Justice Alito for finally becoming woke to the role that race and racism and discrimination plays and otherwise facially neutral laws something he seems to not see in other areas of law and in other controversies. I think Justice Alito is right that one of the reasons why New York has its concealed carry policies was fear of especially Southern European immigrants at the time who were thought more likely to carry weapons on the streets and creating a public safety hazard.

However, I don't think that is a complete explanation and in fact during the 1920s and '30s these concealed carry laws like New York has requiring a good cause to carry and requiring a permit to get one spread throughout the nation and were adopted in states that were Southern states and Northern states, rural states, Western states all over the country without regard to where there were disfavored groups who were known to carry firearms. He's right in part but I don't think it's a complete answer to why we had a long history of restrictions on concealed carry.

Brian Lehrer: Let me get one more call in here. It's another one from the Bronx, M, you're on WNYC. Thank you for calling in and we've got about 30 seconds for you by the way.

M: I am a 36-year-old female, I work in the Bronx. Four years ago I was followed home, I'm a essential worker working late followed home. Someone stalking me from my job I had nothing to defend myself with and this person has been stalking me for the past four years. I would like to own and carry a gun legally and responsibly. Right now I have to carry an illegal weapon on me to feel like I can defend myself if he ever decides to attack me so I want this to work out for me, but this is a situation I have to deal with. I think a lot of other women do too.

Brian Lehrer: Have you indicated to this stalker in any way that you are armed?

M: No, he hasn't gotten that close to me. He's actually been arrested several times and he's in jail right now, but I'm just waiting for the day-- I have been told by officers that there's not much they can do until there is a physical contact and physical assault.

Brian Lehrer: You just want to be able to carry a firearm legally as opposed to illegally.

M: Absolutely, and I have to carry a taser on me, I carry a knife on me, and I would really like to not have to encounter physical situation. It's the empowerment of knowing that I can defend myself. That's what I want to feel.

Brian Lehrer: Thank you very much for your call. Well, we're just about out of time Professor Winkler. We have the mayor standing by for a weekly estimator segment. In just a 15 second soundbite to wrap this up, are you surprised at all how easy it's been for us here in Liberal New York City to find callers who want to be able to carry weapons in public?

Adam Winkler: No, I think that part of the reason why people want to carry guns in public is a real concern about self-defense. That is something that we all share in our society and so I'm not that surprised.

Brian Lehrer: Adam Winkler, UCLA professor of law and author of books including Gunfight: The Battle Over the Right to Bear Arms in America. Thank you so much for joining us today.

Adam Winkler: Thank you for having me, Brian.

 

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