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The Supreme Court's questioning during oral arguments in a New York gun rights case showed that several justices have strong reservations about the state’s highly restrictive regulations for getting concealed carry permits.
The case, New York State Rifle & Pistol Association, Inc. v. Bruen, is potentially the biggest gun rights case to go before the high court in more than a decade.
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New York Solicitor General Barbara Underwood noted that, under current rules, the state has the discretion to evaluate a person’s reason for applying for a permit, as an applicant has to show "proper cause" for needing one. Underwood pointed out that the more specific a reason a person gives in terms of facing a threat of danger, the better their chances.
"Why isn’t it good enough to say I live in a violent area and I want to defend myself?" Justice Brett Kavanaugh asked.
New York State Rifle and Pistol Association president Tom King poses for a photo Thursday, Oct. 28, 2021, in East Greenbush, N.Y. (AP Photo/Hans Pennink)
Kavanaugh’s question came after Justice Samuel Alito gave a hypothetical of someone who gets out of work late at night and has to walk to or from a subway or bus station through a high-crime neighborhood to get home.
Alito noted that under the current law, that person would apply for a permit claiming he felt unsafe without citing a specific threat and be denied.
"That is, in general, right," Underwood admitted.
"How is that consistent with the core right to self-defense?" Alito asked, stating that this is at the core of the Second Amendment.
Kavanaugh suggested that one could cite statistics about crime in one’s area, and Underwood said that the more specific the statistics are to an applicant’s neighborhood or even block, the better the applicant's chances would be.
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Despite these challenging questions, conservatives did indicate that it would be reasonable to have limits on where one could bring a concealed firearm.
The court appeared to accept the state’s argument for continued individualized discretion to enforce "sensitive place" weapon restrictions in areas such as college campuses, concert or sporting event venues and places where alcohol is served. Even attorney Paul Clement, taking the side of gun owners, acknowledged that such restrictions could potentially be acceptable.
Dense population was a concept that was used to argue both sides, as Underwood said there were less restrictions in less populated areas. Chief Justice John Roberts challenged the logic behind this, arguing that in those places there was less of a chance that a person would feel the need to get a gun for self-defense. In highly-populated urban areas, however, he said it seemed like "that’s the last place" a person could actually get a permit.
Underwood said that the history had been "to regulate most strenuously" in densely populated areas because they featured greater police presence and the deterrent of more people nearby. Speaking again of police, Underwood claimed that proliferating guns in areas with a high police presence actually endangers officers because they may not know where shooting is coming from.
She also argued that the current regulations respect the right to self-defense as well as public safety. In densely-populated places, she claimed, the "risks of harm of people [armed with guns] standing shoulder to shoulder" is high.
Roberts said that if the purpose of the Second Amendment was for protection, this goal was undermined by giving preference to areas with fewer people.
"How many muggings take place in the forest?" Roberts asked.
Underwood said she did not know the answer, but countered by stating that rapes and robberies do happen on deserted paths.
In his rebuttal, Clement claimed there was a serious problem with being stricter in places with more people, arguing that the areas are full of more people who have Second Amendment rights. Limiting firearms can’t be a governmental interest when there is a constitutional right to bear arms, he argued.
In seven out of the 10 largest cities by population, however, it is easier to acquire a concealed carry permit, he said, as the states do not get to exercise the same level of discretion as New York.
The Justice Department also got time to present an argument in defense of the state law.
DOJ lawyer Brian Fletcher cited the historical precedent of longstanding state laws allowing restrictions on concealed carry weapons. But Alito raised similar concerns expressed by many gun rights groups and others — that many of these laws had a clear discriminatory intent to prevent recent immigrants and minorities from owning guns.
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Crowds gathered outside the Supreme Court building expressing support for each side of the case.
As with other high-profile Supreme Court cases from years past, this case may not see a decision until late in the court’s term some time in June.
Fox News’ Shannon Bream and Bill Mears contributed to this report.
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