“Does the dissent think that laws like New York’s prevent or deter such atrocities?” he wrote. “Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home?”
And then a dig: “And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.”
If a law limiting the ability to obtain a concealed carry permit can’t stop a kid from allegedly buying a semiautomatic rifle and carrying out a racially motivated mass murder, why have laws governing firearm ownership at all?
And, we might wonder, if he sped as he drove to Buffalo, why have speed limits?
The Buffalo example was Alito’s and his alone. But it does hint at how the ruling released in New York State Rifle & Pistol Association v. Bruen overturning the New York law reflects how the court’s views of gun ownership have continued to move sharply to the right.
At issue was New York’s rules for obtaining a concealed-carry permit. In the state, as in other large states like California, New Jersey and Massachusetts, such permits are granted on a case-by-case basis. This is known as a “may issue” standard; as in, the state may issue you a permit if you apply. In other states, the standard is “shall issue”: you apply, you meet the requirements, you get a permit.
What the court decided on Thursday was that “may issue” standards were overly stringent. It upheld state-level requirements that people hoping to carry a concealed weapon would need to obtain a permit; it simply made it much easier for them to do so in those large states. Importantly, the opinion written by Justice Clarence Thomas states that “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home” — an extension of the court’s determination in District of Columbia v. Heller that people had a right to have a handgun inside their homes.
A number of law enforcement officials backed New York’s law in an amicus brief.
“Vesting discretion with respect to the issuance of concealed-carry licenses in local and state officials,” they wrote, “is an essential component of reducing gun violence, protecting citizen and officer safety, and fostering effective policing practices, particularly in large American cities like the ones [those officials] have served.”
Consider how Alito’s Buffalo rejoinder contrasts with that.
New York has tougher gun laws than most states. One result of those laws is that the majority of firearms recovered at crime scenes in New York originated elsewhere, like Georgia, Virginia and South Carolina. And New Yorkers generally approve of those tougher laws. Siena College polling conducted earlier this month found that 79 percent of New Yorkers (including 79 percent of Republicans) supported a law that mandated permits for those carrying a handgun in public — though the wording of the question suggested that the alternative to the existing law was no law at all, which is not the case.
As it turns out, gauging public opinion on this shift in permit laws is tricky. Polling conducted by Marquette University Law School in May determined that most Americans support the right to carry a concealed weapon if the carrier is licensed, while very few thought people should be allowed to carry concealed weapons without the state issuing a permit. Unanswered: whether states should have less flexibility in that issuance.
We do know from long-running polling conducted as part of the General Social Survey that Republicans have grown increasingly skeptical of mandated permitting for firearm ownership. For 50 years, the GSS has asked whether Americans thought a “police permit” should be required for buying a gun — an archaic framing but the one we have to work with.
Until about 1991, Democrats and Republicans were generally in agreement that such permits should be required. But then the parties diverged, and, in 2021, less than half of Republicans held that view. The gap between the parties, only 10 points in 2004, grew to 36 points.
The Supreme Court majority is reflective of America’s political right as is the Bruen decision. It offers what will likely be an interesting contrast with the court’s expected rejection of Roe v. Wade, in which a leaked draft opinion suggested that the ability to obtain an abortion would be returned to the discretion of the states. Leaning heavily on the Second Amendment, the court is withdrawing such discretion in the case of issuing permits to carry a concealed weapon.
But then, as Thomas points out in a footnote to his opinion, the court has no obligation to consider things like a possible increase in gun violence as a result of making concealed-carry more common. “The right to keep and bear arms,” the footnote reads, quoting from the 2010 decision McDonald v. Chicago, ” … is not the only constitutional right that has controversial public safety implications.” Research published in 2018 found that laws allowing the carrying of concealed weapons, including with a permit, were “associated with 13-15 percent higher aggregate violent crime rates ten years after adoption.”
But, you know: New York’s law didn’t prevent Buffalo. So why impose restrictions at all?